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THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


IN 


ILLINOIS 


OF   THE   CHICAGO    BAR 
EXAMINER  OF  TITLES  FOR  COOK  COUNTY 


COPYRIGHT  1901 

BY 
CALLAGHAN  &  COMPANY 


T 

ft  4351 L 


Co 

rn.  s.  s., 

its  instigator  anb  most  kinblg  critic, 
tfyis  volume  is  bebicateo. 


7488.14 


PREFACE. 


This  volume  is  an  attempt  to  lay  before  my  fellow 
members  of  the  bar  in  Illinois  and  elsewhere  a  neces- 
sarily brief  discussion  of  the  principles  of  registration 
of  title,  a  method  of  dealing  with  land  titles,  although 
now  somewhat  novel  in  the  United  States,  yet  certain, 
in  course  of  time,  to  come  into  common  use.  It  has  been 
many  times  stated  that  the  legal  profession  is  too  slow 
in  the  reform  of  our  land  laws  in  the  direction  of  regis- 
tration of  titles.  My  own  experience  has  been  to  the 
contrary.  What  has  been  accomplished  in  Illinois,  Mas- 
sachusetts, Ohio  and  California  has  been  done  in  most 
part  by  members  of  our  profession.  To  that  profes- 
sion may  well  be  left  the  task  of  working  out,  through 
new  registration  of  title  acts  and  amendments  found 
needed  by  actual  experience,  the  welfare  of  the  land 
owner,  and  a  safer,  simpler,  more  expeditious  and  inex- 
pensive method  of  dealing  with  land. 

Upon  investigation  of  the  subject,  it  will  be  found 
impossible  to  resist  the  conviction  that  the  public  good 
requires  compulsory  registration  of  title.  This  was 
the  result  in  England,  in  1897,  after  some  thirty  years 
of  parliamentary  discussion.  How  this  benefit  can  be 
obtained  by  our  own  land  owners  is  an  economic  prob- 
lem soon  to  come  before  the  bar  of  the  United  States. 

Chicago,  March,  1901. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

PAGE 

LAND  REGISTRATION  IN  ILLINOIS      -  1 

CHAPTER  II. 
PROCEDURE  AND  PRACTICE  ....  4 

CHAPTER  III. 
THE  ILLINOIS  TORRENS  LAW  -  -  -  -  14 

CHAPTER  IV. 
THE  NEW  AND  OLD  SYSTEMS  COMPARED  ...  g9 

CHAPTER  V. 

THE  TOBRENS  SYSTEM  ADAPTABLE  TO  AMERICAN  CONSTI- 
TUTIONS   -  77 

CHAPTER  VI. 
SUPREME  COURT  OPINIONS  -  84 

CHAPTER  VII. 
REGISTRATION  IN  OTHER  COUNTRIES  AND  STATES  -  112 

CHAPTER  VIII. 

CIRCULAR   LETTERS  REGARDING    OPERATION   OF    TORRENS 

LAW  IN  COOK  COUNTY  -  -  -  -      125 

CHAPTER  IX. 

REGISTRATION  OF  TITLE  LITERATURE    -  -  -  -  129 

APPENDIX  ........      135 


vii 


TABLE  OF  CASES. 


PAGE 
ABNDT  v.  GBIGGS,  134  U.  S.,  316,  -  77,  81,  95,  104 

BONNEMOBT  V.   GlLL,    167  MASS.,   338,    340,        -  103 

BBOCK  v.  OLD  COLONY  R.  R.,  146  MASS.,  194,  195,      -                   105 

BROWN  v.  LEVEE  COMMISSION,  50  Miss.,  468,  481,         -  103 

COOK  v.  ALLEN,  2  MASS.,  462,  469,  470,  -  105 

DASCOM  v.  DAVIS,  5  MET.,  335,  340,  -           -  -              105 

DODGE  v.  COLE,  97  ILL.,  388,  -           88 

DONAHUE  v.  WILL  COUNTY,  100  ILL.,  94,      -  88 

FIELD  v.  PEOPLE,  2  SCAM.,  79,  89 

FOURTEENTH  WARD  B.  &  L.  ASSN.  v.  GLOS,  DUNNE  J., 

CIRCUIT  COURT  COOK  COUNTY,  -  31 

GAGE  v.  CARAHER,  125  ILL.,  447,       -  30,  31,  81 

GAGE  v.  CONSUMERS  ELECTRIC  LIGHT  Co.,   33  CHIC. 

LEGAL  NEWS,  154,  -  -      27,  31,  33,  96 

HAMILTON  v.  BROWN,  161  U.  S.,  256,       -  103,  104,  107 

HULING  v.  KAW  VALLEY  RY.  IMP.  Co.,  130  U.  S.,  559,  564,        -         104 
HUBTADO  v.  CALIFORNIA,  110  U.  S.,  516,  528,  531,  -  103 

LORING  v.  HILDBETH,  170  MASS.,  328,     -  109 

MANKIN  v.  CHANDLEB,  2  BBOCK.,  125,  127,  -  103,  105,  106 

MUBBAY  v.  HOBOKEN  LAND  Co.,  18  How.,  272,  277,        -  103 

MURRAY'S  LESSEE  v.  HOBOKEN  LAND  AND  IMP.  Co.,  18  How.,  272,      89 

NEWLAND  v.  MARSH,  19  ILL.,  376,  .  97 

ix 


X  TABLE   OF   CASES. 

PAGE 
PARKER  v.  OVERMAN,  18  How.,  137,  140  ET  SEQ.,      -  -  104 

PENNOYER  v.  NEFF,  95  U.  S.,  714,  727,  103 

PEOPLE  v.  CHASE,  165  ILL.,  526,  -  2,  78,  84 

PEOPLE  v.  HOFFMAN,  116  ILL.,  587,    -  98 

PEOPLE  v.  SIMON,  176  ILL.,  165,      2,  27,  35,  79,  80,  81,  83,  84,  109,  111 
ROGERS  v.  TYLEY,  144  ILL.,  652,  -  27 

SCOTT  v.  SHERMAN,  2  W.  BL.,  977,  979,  -  106 

SEAVERNS  v.  PRESBYTERIAN  HOSPITAL,  173  ILL.,  414,        -  93 

SHEPHERD  v.  WARE,  46  MINN.,  174,  ...         109 

SHORT  v.  CALDWELL,  155  MASS.,  57,  59,  -  -  109 

SMITH  v.  HUTCHINSON,  108  ILL.,  662,  -  30 

STATE  v.  GUILBERT,  56  OHIO  ST.,  575,     -  -  -78,  101,  116 

THE  MARY,  9  CRANCH.,  126,  144,  ...  103 

TURNER  v.  NEW  YORK,  168  U.  S.,  90,  -  •  -  102 

TYLER  v.  JUDGES,  175  MASS.,  71,  -  -      78,  81,  99,  124 

VANCE  v.  VANCE,  108  U.  S.,  514,  -  -  34 

WHEELER  v.  JACKSON,  137  U.  S.,  245,  258,         ...         102 


LAND  REGISTRATION  IN  ILLINOIS. 


CHAPTER   I. 

LAND    REGISTRATION    IN    ILLINOIS. 

Illinois  was  the  first  of  the  United  States  to  adopt 
a  land  title  registration  act. 

In  1891,  the  Illinois  State  Bar  Association  and  the 
Chicago  Real  Estate  Board  approved  resolutions  favor- 
ing the  passage  of  a  joint  resolution  by  the  Thirty-sev- 
enth General  Assembly,  then  in  session,  authorizing 
the  appointment  of  a  commission  to  consider  whether 
the  Australian  or  Torrens  system  of  registration  of 
titles  could  be  adapted  to  the  constitution  and  laws  of 
this  state.  Such  joint  resolution  was  adopted,  and 
Governor  Fifer  appointed  thereunder  as  such  commis- 
sion James  K.  Edsall,  ex- Attorney  General,  as  chair- 
man, and  Theodore  Sheldon,  Willis  G.  Jackson,  George 
W.  Prince  and  Frank  H.  Jones.  Upon  the  death  of  Mr. 
Edsall,  the  vacancy  was  filled  by  the  appointment  of 
Harvey  B.  Hurd.  The  report  of  the  commission  was 
made  to  the  Governor  December  10,  1892,  and  by  him 
presented  to  the  Thirty-eighth  General  Assembly.  Ac- 
companying the  report  of  the  commission  was  the  draft 
of  a  bill  favored  by  the  commission,  and  embodying 
the  substantial  features  of  the  Australian  and  other 
colonial  land  acts  so  modified,  it  was  thought,  as  to 
conform  to  the  requirements  of  the  federal  and  state 
constitutions.  The  bill  failed  to  pass  at  that  session, 
but  received  the  approval  of  the  next  legislature,  under 
the  title  of  "An  Act  Concerning  Land  Titles,"  approved 

June  13, 1895.    In  accordance  with  the  provisions  of  its 

i 


2  LAND    REGISTRATION    IN    ILLINOIS. 

referendum  clause  the  act  was  adopted  in  Cook  County, 
at  a  general  election,  held  November  5, 1895.  The  law 
received  the  practically  unanimous  approval  of  the 
voters  in  that  county,  82,507  being  cast  in  its  favor,  and 
only  5,308  against  it.  On  February  10,  1896,  the  first 
certificate  of  title  was  issued  by  the  registrar  of  titles, 
and  a  number  of  titles  were  brought  under  the  act. 
The  constitutionality  of  the  new  law  was  tested  in  a 
quo  warranto  proceeding,  and  by  its  decision  in  the 
case  of  People  vs.  Chase,1  the  Supreme  Court  of  Illi- 
nois, by  a  bare  majority  of  its  members,  held  the  act 
invalid,  upon  the  ground  that  its  provisions  for  initial 
registration  conferred  judicial  powers  upon  the  regis- 
trar. To  a  majority  of  the  Court  it  seemed  that  by  the 
provisions  of  the  law  of  1895,  the  registrar  was  clothed 
with  power  to  determine  the  ownership  of  land  when 
application  was  made  for  initial  registration  thereof, 
and  to  issue  his  certificate  accordingly.  That  act  did 
not  contemplate  any  judicial  proceedings  as  a  basis  for 
the  initial  registration.  Largely  at  the  instance  of  the 
Chicago  Real  Estate  Board,  a.  new  act  providing  that 
the  ownership  should  be  determined  by  a  decree  in 
equity,  entered  in  a  court  of  competent  jurisdiction, 
upon  which  decree  the  registrar  should  issue  the  first 
certificate  of  title,  was  adopted  by  the  Fortieth  General 
Assembly,  with  but  4  dissenting  votes.  That  law, 
entitled  "An  Act  Concerning  Land  Titles,"  approved 
May  1,  1897,  is  commonly  called  the  Torrens  Law. 
Upon  submission  to  the  voters  of  Cook  County  on  June 
5,  1897,  it  again  received  their  practically  unanimous 
approval.  The  new  law,  and  many  questions  involving 
its  constitutionality,  were  considered  by  the  Supreme 
Court  of  Illinois  in  People  vs.  Simon.2  The  act  was 
there  held  valid  and  constitutional.  The  registrar's 
office,  in  Cook  County,  was  opened  for  business  March 

1 165  111.  526.  2  176  111.  165. 


LAND    REGISTRATION    IN    ILLINOIS.  3 

1,  1899,  and  a  large  number  of  land  titles  have  since 
been  brought  under  the  law. 

The  new  law  is  found  to  work  easily  and  well.  The 
cost  of  an  initial  registration  is  f  24,  to  which  is  to  be 
added  one-tenth  of  one  per  centum  of  the  value  of  the 
property,  the  latter  being  payable  to  the  County  Treas- 
urer toward  creating  an  indemnity  fund  to  make  good 
any  losses  arising  from  the  operation  of  the  system.  On 
all  subsequent  dealings  with  a  registered  title,  the 
expense  is  nominal.  The  entire  expense  of  a  transfer 
or  mortgage  is  $3.  Dealings  with  registered  titles  are 
completed  with  rapidity.  Sales  are  frequently  com- 
pleted, the  purchase  price  paid  over,  and  the  new  cer- 
tificate of  title  issued  to  the  buyer  the  same  day  upon 
which  the  verbal  contract  is  made.  This  rapidity  of 
trarfsfer  obviates  in  most  cases  the  need  of  a  prelimi- 
nary written  contract.  Mortgage  transactions  require 
but  the  added  time  needed  for  the  preparation  of  the 
notes  and  mortgage,  and  a  number  of  loans  have  been 
completed  and  the  money  in  the  borrower's  hands  the 
same  day  of  his  application  to  the  lender.  In  fact,  any 
ordinary  dealing  with  a  registered  title  can  be  fully 
completed  within  an  hour  after  the  parties  present  to 
the  registrar  the  outstanding  certificate  of  title  and 
the  deed,  mortgage  or  other  instrument  authorizing 
the  transaction. 


CHAPTER  H. 

PROCEDURE   AND    PRACTICE. 

The  recorder  of  deeds  is  made  registrar  of  titles,  and, 
in  addition  to  his  duties  as  recorder,  conducts  the  regis- 
tration of  titles,  and  all  dealings  with  registered  land.1 
He  is  assisted  by  deputies  and  examiners  of  title,  the 
latter  attorneys  at  law.2 

INITIAL   REGISTRATION. 

It  is  optional  with  the  owner  to  register  his  land.  He 
files  in  a  court  of  competent  jurisdiction3  his  applica- 
tion in  writing  for  the  registration  of  his  title.  This  in 
ordinary  cases  may  be  in  the  following  form: 

State  of  Illinois, 
County  of  Cook. 

To  the  Judges  of  the  Circuit  Court 
Of  Cook  County, 
In  Chancery  Sitting: 

I  hereby  make  application  to  have  registered  the  title 
to  the  land  hereinafter  described,  and  do  solemnly 
swear  that  the  answers  to  the  questions  herewith,  and 
the  statements  herein  contained,  are  true  to  the  best 
of  my  knowledge  and  belief. 

1st.     Name  of  Applicant — John  Doe. 

Age  of  Applicant — 54  years. 

Residence — 10  State  Avenue,  Chicago,  Illinois. 

Married  to — Mary  Doe. 

Residence — 10  State  Avenue,  Chicago,  Illinois. 

i  Sec.  1.  a  sec.  15. 

a  Sec.  3,  5. 


PROCEDURE  AND  PRACTICE.  5 

2d.  Application  made  by  John  Doe,  acting  as 
owner. 

Residence  as  above. 

3d.  Description  of  Real  Estate  is  as  follows:  Lot 
one  (1),  block  one  (1),  Original  Town  of  Chicago,  in  Cook 
County,  Illinois. 

Estate  or  interest  therein  is  in  fee  simple,  and  is  not 
subject  to  homestead. 

4th.  The  land  is  occupied  by  James  Smith,  whose 
address  is  No.  8  North  Water  Street,  Chicago,  Illinois. 

The  estate  interest  or  claim  of  James  Smith,  occu- 
pant, is  tenant  of  applicant  under  lease  expiring 
April  30, 1901. 

5th.  Liens  and  incumbrances  on  the  lands  are  one 
trust  deed  in  favor  of  Peter  Johnson,  trustee,  whose 
address  is  2  John  street,  Chicago,  Illinois. 

Name  of  owner  or  holder  thereof — William  Jones. 

Postomce  Address — Aurora,  Illinois. 

Amount  of  Claim 110,000  with  interest. 

Recorded   Book   6082,   Page  578. 

6th.  Other  person,  firm  or  corporation  having  or 
claiming  any  estate,  interest  or  claim  in  law  or  equity 
in  possession,  remainder  (reversion)  or  expectancy  in 
said  land  are,  none. 

7th.     Other  facts  connected  with  said  land  are,  none. 

8th.  Therefore  the  applicant  prays  the  Court  to  find 
and  declare  the  title  or  interest  of  the  applicant  in  said 
land  and  decree  the  same,  and  order  the  Registrar  of 
Titles  to  register  the  same,  and  to  grant  such  other  and 
further  relief  as  shall  be  according  to  equity. 

John  Doe. 

Subscribed  and  sworn  to  before  me  by  the  above 
named  John  Doe,  as  owner,  this  twentieth  day  of  Feb- 
ruary, A.  D.  1901. 

Richard  Roe, 

Notary  Public. 


6  LAND    REGISTRATION    IN    ILLINOIS. 

I  hereby  assent  to  the  registration  of  the  above  de- 
scribed real  estate  as  prayed  for  by  John  Doe,  who  is 
my  husband.  Mary  Doe. 

State  of  Illinois, 


ss 
County  of  Cook.  ' 

I,  Kichard  Roe,  a  Notary  Public  in  and  for  said  Coun- 
ty in  the  State  aforesaid: 

Do  hereby  certify  that  Mary  Doe,  personally  known 
to  me  to  be  the  same  person  whose  name  is  subscribed 
to  the  foregoing  assent,  appeared  before  me  this  day  in 
person  and  acknowledged  the  said  assent  as  her  free 
and  voluntary  act  for  the  uses  and  purposes  there- 
in set  forth. 

Given  under  my  hand  and  seal,  this  20th  day  of  Feb- 
ruary, A.  D.  1901. 

Richard  Roe, 

Notary  Public. 

We  hereby  assent  to  the  registration  of  the  above  de- 
scribed real  estate  as  prayed  for  by  John  Doe. 

James  Smith, 
Peter  Johnson,  trustee. 
William  Jones. 

All  persons  interested  in  the  land  and  all  persons  in 
possession  or  occupancy  must  be  made  parties  defend- 
ant.1 Summons  is  issued  to  all  defendants.2  Such  as 
reside  or  are  to  be  found  within  the  State  will  be  served 
by  the  proper  sheriff.  Non-residents  will  be  served  by 
publication.3  Due  opportunity  to  contest  the  matter 
must  be  afforded  to  all  interested. 

The  Court  refers  the  application  to  an  examiner  of 
titles  who  proceeds  with  an  independent  investigation 
of  the  title.4  To  him  is  submitted  the  abstracts  of  title 
and  any  oral  testimony  tending  to  determine  the  rights 

1  Sec.  11.  s  Sec.  21. 

2  Sec.  19.  4  Sec.  18. 


PROCEDURE  AND  PRACTICE.  7 

of  all  parties.  He  approves  no  title  unless  satisfied 
that  all  persons  interested  are  before  the  Court.  If  in 
his  opinion  the  applicant  is  entitled  to  registration  he 
so  reports  to  the  Court.  To  the  report  of  the  examiner 
any  party  may  file  objections,  which  are  heard  and 
disposed  of  by  the  Court.  Upon  the  confirmation  of  the 
report  a  decree  is  entered  confirming  the  applicant's 
title  and  directing  the  registrar  to  issue  to  him  the  first 
certificate  of  title.5  This  is  done  by  entry  in  a  book 
called  the  "Register  of  Titles."6  This  book  is  composed 
of  a  large  number  of  certificates  of  title  (one  on  a  page) 
bound  together,  numbered  in  the  order  of  their  issue 
and  each  with  ample  space  at  its  foot  for  the  entry  of 
subsequent  notations,  affecting  the  title.  Every  certifi- 
cate of  title  is  in  duplicate,  signed  by  the  registrar,  and 
recites  the  condition  of  the  title.  One  of  these  is  kept  by 
the  registrar  bound  in  the  "Register  of  Titles,"  the 
other  is  delivered  to  the  owner.  This  completes  the  ini- 
tial registration. 

The  certificate  of  title  immediately  upon  its  issue  is 
conclusive  proof  of  ownership  in  all  courts  as  against 
all  parties  before  the  court  in  the  proceeding  for  initial 
registration,7  and  all  persons  dealing  with  the  land 
after  registration.  After  the  expiration  of  two  years 
from  the  first  registration,  no  suit  attacking  the  title 
of  the  registered  owner  can  be  brought.8  No  exception 
is  made  in  favor  of  infants  or  persons  under  disability,9 
but  such  persons  are  given  recourse  upon  the  indemnity 
fund.10  It  is  thus  seen  that  all  persons  are  bound  by 
the  first  certificate  of  title,  except  those  overlooked, 
and  not  made  parties  to  the  suit  for  registration.  If  the 
court  proceeding  is  properly  conducted,  there  should 
be  no  persons  not  bound  by  the  first  certificate  of  title. 

5  Sec.  25.  s  Sec.  27. 

e  Sees.  30,  35.  •  Sec.  26. 

i  Sec.  26.  10  Sec.  101. 


8  LAND  REGISTRATION  IN  ILLINOIS. 

In  all  dealings  with  the  land  after  registration,  the 
bona  fide  purchaser  or  incumbrancer  has  a  like  secur- 
ity to  that  given  to  the  purchaser  of  negotiable  paper.11 
The  title  of  such  purchaser  or  incumbrancer  cannot  be 
upset.12 

TRANSFERS. 

Transfers  of  registered  land  are  made  in  the  follow- 
ing manner:13  The  owner  executes  the  usual  deed,  and 
submits  it,  together  with  his  certificate  of  title,  to  the 
buyer.  In  every  transaction,  the  owner  must  produce 
his  duplicate  certificate  of  title.  He  can  do  absolutely 
nothing  without  it.  If  lost  or  destroyed,  upon  proper 
showing14  the  owner  receives  a  certified  copy  marked 
"owner's  certified  copy,  issued  in  place  of  duplicate 
lost."  This,  after  entry  of  the  transaction  upon  the  or- 
iginal certificate  of  title,  answers  the  same  purpose  as 
the  lost  certificate.  No  new  forms  of  conveyance  are  re- 
quired.15 The  buyer,  after  inspection  of  the  original 
certificate  of  title  in  the  register,  and  finding  thereon 
no  incumbrance  or  lien,  safely  pays  over  the  purchase 
money,  and  receives  the  deed  and  duplicate  certificate 
of  title.  He  then  delivers  them  both  to  the  registrar, 
who  when  satisfied  as  to  the  identity  of  the  parties  and 
that  the  transfer  should  be  made,  notes  the  transfer 
upon  the  register.16  This  operates  to  transfer  the  title. 
No  title  passes  by  the  delivery  of  the  deed.17  The  deed 
after  delivery  and  before  the  registration  of  the  trans- 
fer, is  a  mere  contract  between  the  parties.18  Its  sole 
object  is  to  authorize  the  registrar  to  register  the  trans- 
fer. The  transfer  is  registered,  when  the  registrar  can- 
cels the  old  certificate  of  title,  and  issues  a  new  one  in 
duplicate  as  before,  one,  called  the  original,  being  re- 

11  Sec.  39.  is  Sec.  52. 

12  Sees.  93,  94  and  95.                       i«  Sec.  47. 
is  Sec.  47.  1*  Sec.  49. 
i*  Sec.  58.  is  Sec.  54. 


PROCEDURE  AND  PRACTICE.  9 

tained  in  the  register  and  the  other  called  the  dupli- 
cate, after  proper  receipt  therefor  filed  with  the  reg- 
istrar, delivered  to  the  buyer,  now  the  new  owner.  The 
deed  is  kept  by  the  registrar.19 

MORTGAGES. 

A  mortgage  of  registered  land  is  effected  in  some- 
what the  same  manner.20  The  owner  executes  the  mort- 
gage in  duplicate,21  and  delivers  it,  with  the  note  or 
bond  and  his  certificate  of  title,  to  the  lender.  The  lat- 
ter, after  inspection  of  the  proper  folium  in  the  regis- 
ter, and  finding  thereon  no  incumbrance  or  lien,  safely 
pays  over  the  money  to  the  borrower,  and  receives  the 
mortgage  securities  with  the  certificate  of  title.  The 
note  or  bond  and  duplicate  mortgages  are  presented  to 
the  registrar,  who  identifies  the  note  or  bond  and  notes 
the  transaction  upon  the  register  as  well  as  upon  the 
owner's  certificate  of  title.22  The  latter  with  the  note 
or  bond  is  thereupon  returned  to  the  borrower,  who 
may  use  the  same  in  effecting  a  second  or  third  or  more 
mortgages.  One  of  the  duplicate  mortgages  is  retained 
by  the  registrar.23  The  other  with  the  date  of  its  regis- 
tration endorsed  thereon  by  the  registrar,  and  the  note 
or  bond  is  delivered  to  the  lender.  When  the  mortgage 
is  paid,  a  release  of  the  same  is  filed  with  the  registrar, 
who,  when  satisfied  that  the  note  or  bond  is  duly  paid, 
thereupon  notes  the  release  upon  the  register  book  as 
well  as  upon  the  duplicate  certificate  of  title.24  The 
latter  is  then  returned  to  the  owner,  or  he  may  sur- 
render it  to  the  registrar  for  cancellation,  and  receive 
a  new  duplicate  certificate  of  title  containing  no  men- 
tion of  the  mortgage. 

i»  Sec.  51.  22  Sec.  60. 

20  Sec.  59.  23  Sec.  62. 

21  Sec.  62.  24  Sec.  65. 


10  LAND  REGISTRATION  IN  ILLINOIS. 

TRUSTS. 

Registered  owners,  by  deed  or  other  instrument  filed 
with  the  registrar,  may  create  such  trusts  as  may  be 
desired.25  The  terms  of  the  trust  are  not  set  forth  in 
the  certificate  of  title,  but  after  the  name  of  the  trustee 
is  inserted,  the  words  "in  trust,"  "upon  condition,"  "or 
with  limitation,"  as  the  case  may  be,  and  no  subsequent 
transfer  or  dealing  can  be  had  thereafter,  except  upon 
the  order  of  a  court  of  proper  jurisdiction  or  upon  the 
written  opinion  of  at  least  two  of  the  examiners  of  title 
that  the  proposed  transfer  or  dealing  is  in  accordance 
with  the  terms  of  the  trust,  condition  or  limitation.26 

JUDGMENT    AND    OTHER    LIENS. 

No  judgment,  decree,27  attachment,28  lis  pendens,29 
mechanic's  lien,  or  other  statutory  legal  or  equitable 
lien,30  except  taxes  and  special  assessments,  for  which 
a  sale  has  not  been  had,  is  a  lien  upon  registered  land, 
until  a  certified  copy  of  the  judicial  proceedings,  or  a 
copy  of  the  instrument  upon  which  the  lien  is  based,  is 
filed  with  the  registrar,  and  a  brief  note  thereof  is  en- 
tered by  him  upon  the  certificate  of  title  in  the  register. 
This  abolishes  all  general  liens,  and  one  dealing  with 
a  registered  title  can  safely  ignore  any  lien  not  entered 
upon  the  certificate  of  title  in  the  register.  The  area  of 
search  is  enormously  reduced. 

ADVERSE    CLAIMS. 

Provision  is  made  for  all  who  wish  to  give  notice  of  a 
lien  upon  or  claim  against  registered  land.31  All  such 
notices  are  entered  by  the  registrar  upon  the  proper 
certificate  of  title  in  the  register  book,  and  are  thus 

23  Sec.  68.  29  Sec.  84. 

26  Sec.  69.  so  Sec.  90. 

27  Sec.  85.  31  Sec.  92. 

28  Sec.  86. 


PROCEDURE  AND  PRACTICE.  11 

brought  directly  to  the  attention  of  any  one  proposing 
to  deal  with  the  registered  land.  Until  such  claims  are 
removed,  as  they  may  be  by  proper  proceedings  provid- 
ed in  the  act,  the  registrar  will  enter  them  upon  all 
succeeding  certificates  of  title.  Notice  is  thus  given  of 
mechanic's  lien,  foreclosure,  attachment,  or  other  suits 
affecting  the  land,  unregistered  mortgages  or  other 
legal  or  equitable  liens,  trusts  of  any  kind,  sale  for 
taxes  and  special  assessments  and  any  other  nature  of 
claim  now  permitted  to  be  asserted  in  any  manner. 

DOWER  AND   HOMESTEAD. 

Dower  is  preserved  in  registered  land,  and  in  its  first 
registration,  as  well  as  in  all  subsequent  dealings,  the 
right  of  dower  in  husband  or  wife  of  the  registered 
owner  is  recognized  and  protected.  The  same  is  true  of 
the  statutory  right  of  homestead.32 

TRANSMISSION. 

Upon  the  death  of  a  registered  owner,  for  the  pur- 
pose of  distribution  of  his  estate,  his  registered  lands 
are  treated  as  personal  property,  and  as  such  pass 
not  to  the  heirs  or  devisees,  but  to  the  executor  or  ad- 
ministrator.33 Before  transferring  or  otherwise  dealing 
with  the  land,  the  executor  or  administrator  must  file 
with  the  registrar,  as  authority  for  such  transfer  or 
dealing,34  a  certified  copy  of  an  order  of  the  court  ad- 
ministering upon  the  estate  of  the  deceased  owner.  In 
the  case  of  ordinary  distribution  among  devisees  or 
heirs,  the  executor  or  administrator,  upon  proper 
authority  from  the  court  appointing  him,  will  apply  to 
the  registrar  to  have  the  land  transferred  to  the  devisee 
or  heir.  The  sale  of  land  for  the  payment  of  debts  will 
be  conducted  as  heretofore.  On  filing  in  the  registrar's 

32  Sec.  55.  3*  Sec.  71. 

ss  Sec.  70. 


12  LAND  REGISTRATION  IN  ILLINOIS. 

office  the  deed  and  order  of  confirmation  of  the  sale, 
directing  him  so  to  do,  the  registrar  will  transfer  the 
land  to  the  purchaser  at  such  sale.85 

The  great  advantages  in  this  change  in  administer- 
ing upon  land  of  a  deceased  owner  are  manifest.  All 
questions  concerning  heirship,  dower  and  rights  of 
creditors  are  thus  conclusively  settled  at  the  time,  and 
do  not  continue,  as  under  the  old  system,  to  remain  for 
years  afterwards  as  possible  defects  in  a  title. 

TAX   SALES. 

The  holder  Of  a  tax  certificate  of  sale  must  within 
three  months  after  the  date  of  sale  file  the  certificate  of 
sale  or  a  sworn  copy  thereof  with  the  registrar  for  entry 
upon  the  proper  certificate  of  title,  and  during  the 
same  period  must  mail  to  all  persons  noted  upon  the 
certificate  of  title  as  interested  in  the  land,  a  notice  of 
the  registration  of  the  tax  certificate  of  sale.  In  default 
of  such  filing  and  notice,  the  land  is  released  from  the 
sale.36  Should  the  certificate  of  sale  ripen  into  a  tax 
deed,  the  holder  thereof  may  on  presentation  of  the 
tax  deed  and  outstanding  certificate  of  title,  have  the 
land  transferred  to  him.  If  he  cannot  present  the  out- 
standing certificate  of  title  he  must  present  an  order  of 
the  court  ordering  the  sale  for  the  tax  and  this  order 
can  be  granted  only  after  notice  to  all  persons  inter- 
ested in  the  land.37 

PROCEEDINGS  IN  CHANCERY. 

The  act  provides  a  ready  recourse  to  a  court  of  equity 
in  all  casesi  of  wrong,  doubt  or  mistake,  and  the  courts 
have  at  all  times  full  control  over  the  registrar.38  But 
the  title  of  a  bona  fide  purchaser  or  incumbrancer  will 
always  be  upheld.39 

as  Sec.  72.  ss  Sec.  93-6. 

se  Sec.  82.  39  Sec.  94. 

"Sec.  83. 


PROCEDURE  AND  PRACTICE.  13 

INDEMNITY   FUND. 

In  nearly  all  the  countries  where  the  Torrens  system 
is  in  use,  an  indemnity  fund  is  provided  to  make  good 
any  losses  incurred  by  rightful  owners  in  being 
deprived  of  their  land  through  fraud  or  accident.  This 
fund  is  raised  by  charging  a  small  fee,  usually 
one-fifth  of  one  per  cent,  upon  the  value  of  the  land 
when  first  registered,  and  each  time  it  afterwards 
passes  by  descent  or  devise.  Small  as  such  fee  is,  it  has 
invariably  proved  to  be  much  larger  than  necessary. 
Drafts  upon  these  assurance  funds  have  been  few  and 
unimportant.  In  some  of  the  British  colonies  no  sucess- 
ful  claim  whatsoever  has  been  made  upon  them. 

The  Illinois  act  provides  an  indemnity  fund  by  the 
payment  of  the  small  charge  of  one-tenth  of  one  per 
cent  upon  the  value  of  the  land  when  first  registered, 
and  a  like  sum  upon  each  transfer  by  descent  or  devise. 
This  indemnity  fund  is  kept  and  managed  by  the  Coun- 
ty Treasurer  under  the  supervision  of  the  County 
Court.40  Ready  proceedings  are  authorized  for  the 
recovery  of  compensation  for  loss  or  damage  arising 
from  the  operation  of  the  act.41 

FEES. 

Initial  registration  fees  are  as  follows: 

Clerk  of  court  on  filing  application . .  $  5 

Publication  notice 2 

Registrar  for  examination  of  title 15 

Registrar  on  issue  of  certificate  of  title    2 


Total $24 

Sheriff's  fees  for  service  of  summons,  if  any,  are  to 
be  added,  together  with  the  contribution  to  the  indem- 
nity fund,  one-tenth  of  one  per  cent  of  the  value  of  the 
property,  or  $1  on  each  $1,000. 

*o  Sec.  101.  41  Sec.  102. 


CHAPTER  III. 

THE  ILLINOIS  TORRENS  LAW. 

ACT  CONCEBNING  LAND  TITLES. 

REGISTRATION  OF  TITLES— RECORDERS  EX-OFFICIO  REG- 
ISTRARS. 

SECTION. 

1.  Recorders  ex-officio  registrars. 

2.  Bond  of  registrars. 

3.  Deputies — duties  of — death  of  registrar. 

4.  Not  to  practice  as  an  attorney. 

5.  Examiners,  etc.,  to  take  oath,  give  bond,  etc. 

6.  Liability  of  registrar  for  acts  of  deputy  as  examiner. 

BRINGING   LAND   UNDER  ACT. 

7.  Bringing  land  under  act. 

8.  Fee  to  be  first  registered. 

9.  Subject  to  lesser  estates,  etc. 

10.  Title  derived  through  tax  sale,  etc. 

11.  Application  to  come  under  act — what  to  contain. 

12.  Any  number  of  contiguous  pieces  may  be  included. 

FORM  OF  APPLICATION    FOR    INITIAL    REGISTRATION    OF 
TITLE  TO  LAND. 

13.  Form  of  application. 

14.  Application  may  be  amended. 

15.  To  what   Court  application  may  be  made — jurisdiction   and 

power  of  Court 

16.  Application  to  be  entered  in  "Land  Registration  Docket" — par- 

ties defendant. 

17.  Application  for  initial  registration — how  docketed. 

18.  Application  to  be  referred  to  examiner — proceedings  of. 

19.  Summons — return  and  service  of. 

REGISTRATION  OF  LAND  TITLE, 

20.  Notice  to  be  published. 

21.  Clerk  to  send  copy  of  publication  by  mail. 

22.  Who  may  oppose  application — answer  to  be  verified. 

23.  When  default  may  be  entered. 

24.  Court  not  to  be  bound  by  report  of  examiner. 

25.  What  the  Court  may  decree. 

14 


THE  ILLINOIS  TORRENS  LAW.  15 

SECTION. 

26.  Upon    whom    decreel   binding — appeal — writ    of    error — when 

Court  may  review  case. 

27.  Within  what  time  action  may  be  commenced. 

28.  Within  what  time  any  person  not  barred  or  concluded  by  such 

order  or  decree  may  assert  his  claim. 

REGISTERING  THE  TITLE. 

29.  Registering  the  title. 

30.  Form  of  certificate  of  title. 

31.  Subsequent  certificates. 

32.  The  words  "Heirs  and  assigns." 

33.  Certificate — what  it  should  contain. 

34.  Certificate  where  two  or  more  are  interested  in  the  land. 

35.  "Registrar  of  titles" — what  to  contain. 

36.  Duplicate  certificate  of  title — to  be  known  as  owner's  duplicate. 

37.  Owner's  receipt  for  the  certificate  of  title. 

38.  In  case  of  final  registration  the  certificate  of  title  shall  relate 

back,  etc. 

39.  Such  certificate  to  be  prima  facie  evidence. 

THE  RIGHTS  OF  REGISTERED  OWNERS. 

40.  The  rights  of  registered  owners. 

41.  Title  after  land  registered. 

42.  Fraud — transfer  from  registered  owner — effect  of. 

43.  Specific  performance — certificate  of  title — conclusive  evidence. 

44.  In  actions  of  ejectment. 

45.  Memorial. 

46.  The  effect  of  bringing  land  under  this  act. 

TRANSFER. 

47.  Transfer. 

48.  When  only  a  part  of  land  transferred. 

49.  When  transfer  of  registered  land  shall  be  deemed  to  be  regis- 

tered. 

50.  Filing  deeds,  etc. — marked. 

51.  Instruments  to  be  kept  in  office. 

52.  Forms  of  deeds,  etc. 

53.  Address  of  owner — notice. 

54.  Deeds,  etc.,  only  authority  of  registrar  to  make  transfer. 

55.  Taxes — assessments — dower — homestead. 

56.  Transferee  married  or  not. 

57.  Registered  owner — delivering  up  certificate — respecting  parcels 

of  land  that  may  be  included  in  one  certificate. 

58.  When  duplicate  certificate    of    title    lost — evidence — certified 

copy  of  original  may  be  issued. 


16  LAND  REGISTRATION  IN  ILLINOIS. 

MORTGAGES,  LEASES  AND  OTHER  CHARGES. 

SECTION. 
69.    Mortgages,  leases  and  other  charges. 

60.  On  filing  the  instrument  intended  to  create  charge — proceed- 

ings. 

61.  Trust  deed  to  be  deemed  a  mortgage. 

62.  When  registered  land  is  in  duplicate,  triplicate  or  more  parts. 

63.  Certified  copies. 

64.  Assignment — how  effected — copy. 

65.  Release,  discharge  or  surrender  of  a  charge. 

66.  Charges — how  enforced — pendente  lite. 

ATTORNEYS  IN  FACT. 

67.  Attorneys  in  fact. 

TRUSTS,  CONDITIONS  AND  LIMITATIONS. 

68.  Trusts,  conditions  and  limitations. 

69.  Order  of  court  or  opinion  of  two  examiners — when  registra- 

tion conclusive  evidence. 

TRANSMISSION. 

70.  Transmission. 

71.  Duty  of  personal  representative  of  deceased  owner — certificate. 

72.  When  administrator  or  executor  may  sell. 

73.  Executor's  or  administrator's  power,   mortgages,  leases   and 

other  personal  interests. 

74.  Personal  interests — when  land  is  devised  to  executor,  to  his 

own  use  or  upon  trust,  etc. 

75.  When  will  empowers  executor  to  sell,  convey,  etc. 

76.  Proof  of  heirship — conclusive  evidence. 

77.  Court  of  probate  may  order  registered  land  to  be  sold  by 

executors,  etc. 

78.  Executors  or  administrators  may  be  ordered  to  make  over 

registered  land  before  final  distribution,  etc. 

79.  Final  distribution. 

DEALINGS  OF  ASSIGNEES,  RECEIVERS,  MASTERS,  ETC. 

80.  Dealings  of  assignees,  receivers,  masters,  etc. 

81.  When  memorial  entered. 

TAX  SALES. 

82.  Tax  sales. 

83.  Tax  deed — effect  of — when  certificate  to  issue — notice — insane 

person,  etc. 

LIS   PENDENS— JUDGMENTS— DECREES— NOTICE. 

84.  Lis  pendens — notice. 

85.  Judgments,  etc. 


THE  ILLINOIS  TORRENS  LAW.  17 

ATTACHMENT— EXECUTION,  ETC.— LIENS. 

SECTION. 

86.  Attachment — execution,  etc. — liens. 

87.  When  registered  land  sold  under  execution,  etc. — sheriff,  etc. — 

to  file  certificate    with   registrar — memorial — certificate    of 
redemption. 

88.  Sale  of  registered  land  by  sheriff,  etc. — surrender  of  outstand- 

ing certificate  of  title. 

89.  Liens  of  mechanics  or  others — notice,  etc.,  to  be  filed  in  the 

registrar's  office. 

90.  When  lien  to  effect  the  title  of  registered  land. 

91.  Certificate  of  Clerk  that  suit,  etc.,  has  been  dismissed  to  be 

filed  in  registrar's  office. 

MEMORIAL  OF  ADVERSE  CLAIM,  ETC. 

92.  Memorial  of  adverse  claim,  etc. 

PROCEEDINGS  IN  CHANCERY. 

93.  Proceedings  in  chancery. 

94.  Person  feeling  aggrieved  by  action  of  registrar    may    file   a 

bill,  etc. 

95.  Nothing  in  two  sections  to  remove  bar — limitations — bona  fide 

purchasers. 

96.  Court  in  addition  to  costs  may  award  damages,   including 

attorneys'  fees. 

INDICES. 

97.  Indices. 

98.  Individual  indices — what  to  contain. 

INDEMNITY  FUND. 

99.  Indemnity  fund. 

100.  How  said  fund  should  be  invested  and  how  paid  out. 

PROCEEDINGS  TO  RECOVER  COMPENSATION  FOR  LOSS   OR 

DAMAGE. 

101.  Proceedings  to  recover  compensation  for  loss  or  damage. 

102.  Action  to  recover  for  loss  or  damage — who  to  be  made  defend- 

ants— duty  of  State's  attorney. 

103.  Time  of  proceedings  limited. 

PENALTIES. 

104.  Penalties. 

105.  Whoever  forges  or  procures  to  be  forged,  etc.,  the  seal  of  the 

registrar,  etc. 

106.  Conviction  not  to  effect  the  remedy. 
2 


18  LAND  REGISTRATION  IN  ILLINOIS. 

FEES. 
SECTION. 

107.  Docket  Fees. 

108.  Registrar's  fees. 

109.  Act — how  construed. 

ADOPTION  BY  COUNTIES. 

110.  Submission  to  vote  in  counties. 

111.  Emergency. 

AN  ACT  concerning  land  titles.    Approved  and  in  force  May  1,  1897. 

RECORDERS   EX-OFFICIO    REGISTRARS. 

'Recorders  ex-ofScio  registrars.]  §  1.  Be  it  enacted  by  the 
Teople  of  the  State  of  Illinois,  represented  in  the  General 
'Assembly,  Recorders  and  ex-officio  recorders  of  deeds  in 
'the  several  counties  in  this  State  shall  be  registrars  of 
'titles  in  their  respective  counties.  Their  deputies  shall  be 
'deputy  registrars.  All  laws  relative  to  recorders  and  their 
'deputies,  including  their  compensation,  clerk  hire  and 
'expenses,  shall  extend  to  registrars  and  their  deputies,  so 
'far  as  the  same  may  be  applicable.' 

The  duties  of  registrar  are  added  to  those  of  the 
recorder.  The  records  of  the  recorder's  office  thus 
become  available  for  the  use  of  the  registrar.  All  the 
machinery  needed  to  transfer  land  by  registration  of 
title  is  already  to  be  found  in  the  office  of  the  recorder. 

The  recorder  of  deeds  is  the  official  maker  of 
abstracts  of  title.1 

All  records  kept  in  the  office  of  the  recorder  and  reg- 
istrar and  all  instruments  filed  for  record  therein  are 
open  for  public  inspection  and  examination.2 

'Bond  of  registrars.]  §2.  Every  recorder  and  ex-officio 
'recorder  shall,  before  entering  upon  his  duties  as  registrar, 
'give  a  bond  with  sufficient  security,  to  be  approved  by  the 
'Judge  of  the  County  Court,  payable  to  the  People  of  the 
'State  of  Illinois,  in  the  penal  sum  of  $50,000  (except  that  in 
'counties  having  a  population  of  more  than  100,000  inhabi- 

i  Kurd's  Rev.  St.,  Ch.  115,  §  25.        2  Kurd's  Rev.  St.,  Ch.  115,  §  21. 


THE  ILLINOIS  TORRENS  LAW.  19 

'tants,  the  penalty  of  the  bond  shall  be  $200|000),  condi- 
tioned for  the  faithful  discharge  of  his  duties,  and  to  deliver 
'up  all  papers,  books,  records  and  other  property  belonging 
'to  the  county  or  appertaining  to  his  office  as  registrar  of 
'titles,  whole,  safe  and  undefaced,  when  lawfully  required 
'so  to  do;  which  bond  shall  be  filed  in  the  office  of  the  Sec- 
'retary  of  State,  and  a  copy  thereof  entered  upon  the  rec- 
'ords  of  the  County  Court.' 

'Deputies — duties  of — death  of  registrar.]  §3.  Deputies 
'may  perform  any  and  all  duties  of  the  registrar  in  the 
'name  of  the  registrar,  and  the  acts  of  such  deputies  shall 
'be  held  to  be  the  acts  of  the  registrar,  and  in  case  of  the 
'death  of  the  registrar  or  his  removal  from  office,  the  chief 
'deputy  shall  thereupon  become  the  acting  registrar  until 
'such  vacancy  shall  be  filled  according  to  law,  and  he  shall 
'file  a  like  bond  and  be  vested  with  the  same  powers  and 
'subject  to  the  same  responsibilities  and  entitled  to  the 
'same  compensation  as  in  the  case  of  the  registrar.' 

'Not  to  practice  as  an  attorney.]  §  4.  No  registrar  or 
'deputy  registrar  shall  practice  as  attorney  or  counselor- 
'at-law,  nor  be  in  partnership  while  in  office  with  any 
'attorney  or  counselor-at-law  so  practicing.' 

'Examiners,  etc.,  to  take  oath,  give  bond,  etc.]  §  5.  The 
'registrar  may  appoint  in  his  county  two  or  more  compe- 
'tent  attorneys  to  be  examiners  of  titles  and  legal. advisers 
'of  the  registrar.  Their  compensation  shall  be  fixed  in  the 
'same  manner  as  that  of  deputy  registrars.' 

'Every  examiner  of  title[s]  shall,  before  entering  upon 
'the  duties  of  his  office,  take  and  subscribe  the  oath  pre- 
'scribed  by  the  constitution,  and  shall  also  give  a  bond  in 
'such  an  amount,  with  such  security  as  shall  be  approved 
'by  the  judge  of  the  county  court,  payable  in  like  manner 
'and  with  like  conditions  as  required  of  the  registrar.  A 
'copy  of  the  bond  shall  be  entered  upon  the  records  of 
'said  court  and  the  original  shall  be  deposited  with  the 
'registrar.' 

'Liability  of  registrar  for  acts  of  deputy  as  examiner.]  §  6. 
'The  registrar  shall  be  liable  for  any  neglect  or  omission 


20  LAND  REGISTRATION  IN  ILLINOIS. 

'of  the  duties  of  his  office,  when  occasioned  by  a  deputy 
'or  examiner  of  titles,  in  the  same  manner  as  for  his  own 
'personal  neglect  or  omission.' 

BRINGING    LAND  UNDER  ACT. 

'Bringing  land  under  act.]  §  7.  The  owner  of  any  estate 
'or  interest  in  land,  whether  legal  or  equitable,  may  apply 
'as  hereinafter  mentioned  to  have  his  title  registered.  He 
'may  apply  in  person  or  by  an  attorney  in  fact  authorized 
'so  to  do.  A  corporation  may  apply  by  its  authorized 
'agent,  an  infant  by  his  natural  or  legal  guardian,  any 
'other  person  under  disability  by  his  legal  guardian.  The 
'person  in  whose  behalf  the  application  is  made  shall  be 
'named  as  applicant.' 

Application  may  be  made  for  the  registration  of  any 
land  in  the  county.  Any  owner  may  register  his  title. 
No  one  is  required  so  to  do. 

The  application  may  not  be  made  upon  the  implied 
authority  of  an  attorney  or  solicitor.  By  §  46  the 
land  becomes  subject  to  the  terms  of  the  act,  and 
application  in  person  or  by  express  authority  in  writing 
becomes  necessary. 

'Fee  to  be  first  registered.]  §  8.  No  mortgage,  lien,  charge 
'or  lesser  estate  than  a  fee  simple  shall  be  registered  unless 
'the  fee  simple  to  the  same  land  is  first  registered.' 

The  initial  registration  must  include  the  fee  and  all 
lesser  estates.  The  land  cannot  be  in  part  under  this 
law  and  in  part  under  the  old  system.  This  is  due  to  the 
essentially  different  rules  which  govern  dealings  under 
the  two  systems.  The  Torrens  law  does  not  in  any  way 
affect  land  continuing  under  the  old  system. 

'Subject  to  lesser  estates  etc.]  §  9.  It  shall  not  be  an 
'objection  to  bringing  land  under  this  act,  that  the  estate 
'or  interest  of  the  applicant  is  subject  to  any  outstanding 
'lesser  estate,  mortgage,  lien  or  charge,  but  every  such 
'lesser  estate,  mortgage,  lien  or  charge  shall  be  noted  upon 


THE  ILLINOIS  TORRENS  LAW.  21 

'the  certificate  of  title  and  the  duplicate  thereof,  and  the 
'title  or  interest  certified  shall  be  subject  only  to  such 
'estates,  mortgages,  liens  and  charges  as  are  so  noted, 
'except  as  herein  provided.' 

All  adverse  claims  must  be  adjusted  before  or  during 
the  proceeding  for  initial  registration.  Only  such  lesser 
estates,  mortgages  liens  or  charges  as  are  valid,  or 
admitted  by  the  owner  of  the  fee,  will  be  noted  upon  the 
certificate  of  title.  Holders  of  adverse  claims  must  of 
course  be  made  parties,  as  the  applicant  seeks  their 
extinguishment  by  decree.  Holders  of  admitted  lesser 
estates,  such  as  mortgagees  or  judgment  creditors  must 
also  be  made  parties.  Their  interests  will  be  noted  upon 
the  certificate  of  title  and  thereafter  will  be  enforced, 
released  or  otherwise  dealt  with  in  accordance  with  the 
terms  of  the  act. 

'Title  derived  through  tax  sale,  etc.]  §  10.  No  title  derived 
'through  sale  for  any  tax  or  assessment  shall  be  entitled 
•to  be  first  registered,  unless  it  shall  be  made  to  appear 
'that  the  applicant  or  those  through  whom  he  claims  title 
'have  been  in  the  actual  and  undisputed  possession  of  the 
'land  under  such  title  at  least  ten  years,  and  shall  have 
'paid  all  taxes  and  assessments  legally  levied  thereon  for 
'seven  successive  years  of  that  time.' 

Applicants  for  registration  under  this  section  are 
required  to  make  parties  defendant  the  holder  of  the 
patent  title  and  all  claiming  under  him.  No  tax  title 
can  thus  be  registered  until  adjudicated  superior  to  the 
patent  title. 

'Application  to  come  under  act — what  to  contain.]  §  11. 
'The  application  shall  be  in  writing,  signed  and  sworn  to 
'by  the  applicant  or  the  person  acting  in  his  behalf.  It 
'shall  set  forth  substantially: 

'a.  The  name  and  place  of  residence  of  the  applicant, 
'and  if  the  application  is  by  one  acting  in  behalf  of 


22  LAND  REGISTRATION  IN  ILLINOIS. 

'another,  the  name  and  place  of  residence  and  capacity  of 
'the  person  so  acting. 

'b.  Whether  the  applicant  (except  in  the  case  of  a 
'corporation)  is  married  or  not,  and,  if  married,  the  name 
'and  residence  of  the  husband  or  wife. 

'c.    The  description  of  the  land. 

'd.  The  applicant's  estate  or  interest  in  the  same,  and 
'whether  the  same  is  subject  to  an  estate  of  homestead. 

'e.  Whether  the  land  is  occupied  or  unoccupied,  and,  if 
'occupied  by  any  other  person  than  the  applicant,  the  name 
'and  postoffice  address  of  each  occupant,  and  what  estate 
'or  interest  he  has  or  claims  in  the  land. 

'f.  Whether  the  land  is  subject  to  any  lien  or  incum- 
'brance,  and,  if  any,  give  the  nature  and  amount  of  the 
'same,  and,  if  recorded,  the  book  and  page  of  record;  also 
'give  the  name  and  postoffice  address  of  each  holder 
'thereof. 

'g.  Whether  any  other  person  has  any  estate  or  claims 
'any  interest  in  the  land,  in  law  or  equity,  in  possession, 
'remainder,  reversion  or  expectancy,  and  if  any,  set  forth 
'the  name  and  postoffice  address  of  every  such  person  and 
'the  nature  of  his  estate  or  claim. 

'h.  In  case  it  is  desired  to  settle  or  establish  boundary 
'lines  the  names  and  postoffice  addresses  of  all  the  owners 
'of  the  adjoining  lands  that  may  be  affected  thereby,  so  far 
'as  he  is  able,  upon  diligent  inquiry,  to  ascertain  the  same. 

'i.  If  the  applicant  is  a  male,  that  he  is  of  the  full  age 
'of  twenty-one  years;  if  a  female,  that  she  is  of  the  full 
'age  of  eighteen  years.  If  the  application  is  on  behalf  of 
'a  minor,  the  age  of  such  minor  shall  be  stated.  If  the 
'application  is  by  a  husband  or  wife,  the  other  shall  by 
'indorsement  thereon  acknowledged  as  in  the  case  of  deeds 
'or  by  a  separate  instrument  acknowledged  in  the  same 
'way  signify  his  or  her  assent  to  the  registration  as  prayed. 

'j.  When  the  place  of  residence  of  any  person  whose 
'residence  is  required  to  be  given  is  unknown,  it  may  be 
'so  stated  if  the  applicant  will  also  state  that  upon  diligent 
'inquiry  he  has  been  unable  to  ascertain  the  same.  All 
'persons  named  in  the  application  shall  be  considered  as 


THE  ILLINOIS  TORRENS  LAW.  23 

'defendants  thereto,  and  all  other  persons  shall  be  included 
'and  considered  as  defendants  by  the  term  "all  whom  it 
'may  concern." ' 

Application  blanks  are  always  found  at  the  regis- 
trar's office. 

Care  should  be  taken  that  the  application  comply 
with  the  form  provided  by  the  act,  since  it  may  be 
amended  only  under  oath.  See  §  14. 

In  clause  e.,  tenants  will  be  named  as  such. 

In  clause  f.,  where  there  are  ^mortgages  or  trust 
deeds,  the  name  and  postoifice  address  of  each  mort- 
gagee or  trustee  will  be  given,  as  well  as  that  of  the 
holder  of  the  note  secured  thereby. 

The  expense  of  service  of  summons  upon  defendants 
not  opposing  the  registration,  such  as  tenants,  mort- 
gagees, trustees  and  holders  of  notes  secured  by  mort- 
gage or  trust  deed,  may  be  avoided  by  the  assent  in 
writing  of  such  persons  endorsed  upon  the  application. 
The  form  of  such  assent  may  be  as  follows: 

"I  hereby  assent  to  the  registration  of  the  "within 

"described  real  estate  as  prayed  for  by 

applicant"  (naming  him  or  her). 

No  acknowledgment  is  needed. 

It  is  usual,  where  no  contest  is  anticipated,  to  lodge 
the  application  with  the  registrar,  who  will  see  that  it 
is  filed  in  the  proper  court. 

'Any  number  of  contiguous  pieces  may  be  included.]  §  12. 
'Any  number  of  contiguous  pieces  of  land  in  the  same 
'county,  and  owned  by  the  same  person,  and  in  the  same 
'right,  or  any  number  of  pieces  of  property  in  the  same 
'county  having  the  same  chain  of  title  and  belonging  to 
'the  same  person  may  be  included  in  one  application.' 

Initial  registration  fees  are  fixed  in  §  108.  One  title 
only  with  its  necessary  investigation  is  contemplated  in 
each  application.  The  title  may  embrace  any  number 


24  LAND  REGISTRATION  IN  ILLINOIS. 

of  pieces  of  land  if  contiguous;  450  lots  in  the  same  sub- 
division but  embraced  in  one  title  have  been  registered 
in  one  application.  When  the  application  includes 
titles  derived  from  more  than  one  source,  a  further  fee 
for  each  additional  source  is  to  be  paid.  §  108. 

'Form  of  application.]     §  13.     The  form  of  the  application 
'may  be,  with  appropriate  changes,  as  follows: 

FORM  OF  APPLICATION    FOR    INITIAL    REGISTRATION    OF 
TITLE  TO   LAND. 


To  the  Judge  of  the Court  of County,  Illinois,  in  chan- 
cery sitting: 

State  of  Illinois,  \ 
County  of  . . .  /  Sl 

I  hereby  make  application  to  have  registered  the  title  to  the  land 
hereinafter  described,  and  do  solemnly  swear  that  the  answers  to 
the  questions  herewith,  and  the  statements  herein  contained,  are 
true  to  the  best  of  my  knowledge  and  belief. 

(1st.)     Name  of  applicant Age years.  Residence 

(No.  street  or  township).     Married  to (Name  hus- 

band  or  wife).    Residence (No.  street  or  township). 

(2d.)     Application     made     by acting     as . . . (Owner, 

agent  or  attorney) Residence (No.  street  or  town- 
ship)   

(3d.)     Description  of  real  estate  is  as  follows: 

estate  or  interest  therein  is and subject  to  homestead. 

(4th.)     The  land  is occupied  by (Names  of  occupants) 

whose  address  is (No.  street  or  township)    and address 

The  estate,  interest  or  claim  of  occupant  is 

(5th.)     Liens  and  incumbrances  on  the  land Name  of 

holder  or  owner  thereof Postoffice  address Amount 

of  claim  | Recorded,  Book Page 

(6th.)  Other  person..,  firm  or  corporation  having  or  claiming 
any  estate,  interest  or  claim  in  law  or  equity,  in  possession,  remain- 
der, reversion  or  expectancy  in  said  land  are Address 

Character  of  estate,  interest  or  claim  is 

(7th.)     Other  facts  connected  with  said  land  are 

(8th.)  Therefore  the  applicant  prays  the  Court  to  find  and 
declare  the  title  or  interest  of  the  applicant  in  said  land  and  decree 
the  same,  and  order  the  registrar  of  titles  to  register  the  same,  and 
to  graoit  such  other  and  further  relief  as  shall  be  according  to 
equity. 

(Applicant's  signature) 

By (Agent,  Att'y,  Adm'r,  or  Guard 


THE  ILLINOIS  TORRENS  LAW.  25 

Subscribed  and  sworn  to  before  me  by  the  above  named 

as (Owner,  Att'y,  or  Agent.)  this day  of ,  A.  D.  18. . 


I  hereby  assent  to  the  registration  of  the  above  described  real 

estate  as  prayed  for  by who  is  my (Husband  or  wife.) 

(Husband  or  wife's  signature) 

State  of  Illinois,  1  _ 
County  of....   /  ss' 

I,  a in  and  for  said  County  in  the  State  aforesaid, 

Do  Hereby  Certify  that personally  known  to  me  to  be  the 

same  person  whose  name   is   subscribed   to   the   foregoing  assent, 
appeared  before  me  this  day  in  person  and  acknowledged  the  said 

assent  as free  and  voluntary  act  for  the  uses  and  purposes  therein 

set  forth. 

Given  under  my  hand  and seal,  this day  of A.  D.  18.. 


'Application  may  be  amended.]  §  14.  The  application 
'may  be  amended  only  by  supplemental  statement  in 
'writing,  signed  and  sworn  to  as  in  the  case  of  the  original.' 

'To  what  court  application  may  be  made — jurisdiction  and 
'power  of  court.]  §  15.  The  application  for  registration 
'may  be  made  to  any  Court  having  chancery  jurisdiction 
'in  the  County  where  the  land  is  situated,  and  such  Court 
'shall  have  power  to  inquire  into  the  condition  of  the  title 
'and  to  any  interest  in  the  land,  and  any  lien  or  incum- 
'brance  thereon,  and  to  make  all  such  orders,  judgments 
'and  decrees  as  may  be  necessary  to  determine,  establish 
'and  declare  the  title  or  interest,  legal  or  equitable,  as 
'against  all  persons,  known  or  unknown,  and  all  liens  and 
'incumbrances  existing  thereon,  whether  by  law,  contract, 
'judgment,  mortgage,  trust  deed  or  otherwise,  and  to 
'declare  the  order  and  preference  as  between  the  same,  and 
'to  remove  clouds  from  the  title,  and  for  that  purpose  the 
'said  Court  shall  be  always  open,  and  such  orders,  judg- 
'ments  and  decrees  may  be  made  and  entered  as  well  in 
'vacation  as  in  term  time.' 

As  to  the  jurisdiction  and  power  of  the  court,  see 
also  §  25. 

'Application  to  be  entered  in  "land  registration  docket"— 
'parties  defendant.]  §  16.  Upon  the  filing  of  the  applica- 


26  LAND  REGISTRATION  IN  ILLINOIS. 

'tion  in  the  office  of  the  Clerk  of  the  Court,  the  Clerk  shall 
'docket  the  same  in  a  book  to  be  kept  for  that  purpose, 
'which  shall  be  known  as  the  "Land  Registration  Docket." 
'The  application  may  be  entitled  in  all  entries  and  proceed- 
ings as  follows:  "In  the  matter  of  the  application  of  (name 
'of  applicant)  to  register  the  title  to  (here  insert  short 
'description  of  the  land),"  and  if  any  person  is  named  as 
'being  in  possession  of  the  premises  or  having  any  lien  or 
'incumbrance  upon,  or  as  having  or  claiming  any  interest 
'in  the  land,  such  person  shall  be  named  as  defendant. 
'All  other  persons  shall  be  made  and  deemed  to  be  defend- 
'ants  by  the  name  or  designation  of  "all  whom  it  may 
'concern." ' 

'Application  for  initial  registration — how  docketed.]  §  17. 
'All  applications  for  initial  registration  of  title  shall  be 
'docketed  in  such  book  and  numbered  consecutively, 
'beginning  with  number  one.  All  orders,  judgments  and 
'degrees  of  the  Court  in  the  case  shall  be  minuted  in  such 
'docket  under  the  number  so  given  it  with  proper  refer- 
'ences  to  the  book  and  page  where  the  order  or  decree  is 
'recorded.' 

'Application  to  be  referred  to  examiner — proceedings  of.] 
'§  18.  Immediately  upon  the  filing  of  the  application,  an 
'order  may  be  entered  referring  the  same  to  one  of  the 
'examiners  of  titles  appointed  by  the  registrar,  who  shall 
'proceed  to  examine  into  the  title  and  into  the  truth  of  the 
'matter  set  forth  in  the  application  and  particularly 
'whether  the  land  is  occupied,  the  nature  of  the  occupa- 
'tion,  if  occupied;  and  by  what  right,  and  make  report  in 
'writing  to  the  Court,  the  substance  of  the  proof  and  his 
'conclusions  therefrom.  He  shall  have  power  to  admin- 
'ister  oaths,  and  examine  witnesses  and  may  at  any  time 
'apply  to  the  Court  for  directions  in  any  matter  concerning 
'his  investigation.  He  shall  not  be  required  to  report  the 
'evidence  submitted  to  him  except  upon  the  request  of 
'some  party  to  the  proceedings  or  by  the  direction  of  the 
'Court.  No  report  shall  be  made  upon  such  application 
'until  after  the  expiration  of  the  time  specified  in  the  notice 


THE  ILLINOIS  TORRENS  LAW.  27 

'hereinafter  provided  for  the  appearance  of  the  defendants, 
'and  in  case  of  such  appearance,  until  opportunity  is  given 
'to  such  defendant  to  contest  the  rights  of  the  applicant 
'in  such  manner  as  may  be  allowed  by  the  Court.' 

This  is  a  proceeding  in  chancery.1  Objections  or 
exceptions  not  taken  and  filed  with  the  examiner  will 
not  be  heard  by  the  court.2  In  this  respect  the  report  of 
the  examiner  is  like  that  of  a  master  in  chancery.  It 
would  seem  that  the  general  rules  governing  a  hearing 
before  a  master  in  chancery,  apply,  except  as  modified 
by  this  section,  to  an  examiner  of  titles. 

An  order  of  reference  may  be  entered  immediately 
upon  the  filing  of  the  application  and  the  examiner  may 
thereupon  proceed  with  his  investigation  of  the  title; 
but  before  he  can  report,  persons  appearing  to  defend 
are  given  ample  opportunity  to  introduce  their  proofs. 

The  examiner  will  consider  the  abstract  of  title  sub- 
mitted by  the  applicant,  and  its  continuation  made  by 
the  recorder.  He  will  also  take  such  oral  testimony  as 
may  be  needed  to  determine  the  rights  of  all  persons 
in  possession.  Testimony  will  frequently  be  required  to 
be  taken  of  such  matters  affecting  the  title  as  do  not 
appear  of  record,  such  as  proof  of  heirship  and  other 
matters  in  pais. 

There  is  required  an  abstract  of  title  from  the  gov- 
ernment to  any  date  after  the  fire  of  October  9,  1871. 
All  the  county  records  from  the  latter  date  are  in  the 
custody  of  the  recorder.  The  abstract  submitted  is 
continued  by  the  recorder  to  the  date  of  the  filing  of  the 
application.  The  cost  of  this  continuation  is  included 
in  the  registration  fees  fixed  in  §  108. 

Recorded  ante  fire  abstracts  are  receivable,  and  the 

1  Rogers  v.  Tyley,  144  111.  652;  People  v.  Simon,  176  111.  165;  Gage 
v.  Consumers'  Electric  Light  Co.  (Ill  Sup.  Ct),  33  Legal  News,  154. 

2  Gage  v.  Consumers'  Electric  Light  Co.   (Supra). 


28  LAND  REGISTRATION  IN  ILLINOIS. 

books  of  the  recorder  wherein  they  are  copied  will  be 
used. 

In  cases  where  the  owner  is  without  an  ante  fire 
abstract,  one  borrowed  from  an  adjoining  owner  will 
frequently  answer. 

It  is  desired  that  the  abstract  of  title  furnished  by 
the  owner  remain  with  the  registrar,  although  this  is 
not  compulsory.  Such  abstracts  are  always  subject  to 
the  owner's  order,  and  open  to  any  inspection  at  any 
time. 

It  will  be  noted  that  one  of  the  chief  duties  of  the 
examiner  is  to  see  that  all  persons  having  possible 
claim  to  the  land  are  before  the  court.  He  investigates 
each  title  independently  of  the  proofs  offered  by  the 
parties,  and  acts  for  the  protection  of  all  who  may  sub- 
sequently deal  with  the  certificate  of  title.  Each  certifi- 
cate of  title  rests  accordingly  upon  a  thorough  and 
independent  investigation,  by  the  examiner  of  titles 
and  the  examining  department  of  the  registrar,  of  all 
matters  affecting  the  title,  whether  of  record  or  in  pais, 
and  the  decree  of  the  court  in  pursuance  of  the  exam- 
iner's report. 

Should  a  title  be  found  unfit  for  registration  and  the 
applicant  so  desires,  no  finding  or  report  is  made  and 
the  application  is  dismissed  without  prejudice. 

'Summons — return  and  service  of.]  §  19.  The  clerk  shall 
'also  immediately  on  the  filing  of  such  petition  issue  sum- 
'mons  against  all  persons  mentioned  in  the  petition  as 
'defendants.  The  summons  shall  state  the  date  of  the 
'filing  of  the  application,  and  shall  be  made  returnable  at 
'such  time  as  shall  be  directed  by  endorsement  thereon, 
'not  less  than  ten  days  after  the  filing  of  such  petition.  The 
'summons  may  be  served  as  in  other  cases  in  chancery.' 

It  is  usual  to  make  the  summons  returnable  in 
twelve  days  after  the  da*te  of  its  issue.  The  act  in  this 


THE  ILLINOIS  TORRENS  LAW.  29 

respect  differs  from  the  chancery  and  common  law  pro- 
cedure, where  a  summons  is  required  to  be  made 
returnable  not  earlier  than  the  first  day  of  the  next 
term  of  court.  The  fixed  terms  of  court  have  no  appli- 
cation to  this  act.  Compare  in  this  connection  §  15. 

'Notice  to  be  published.]  §20.  The  clerk  shall  also 
'immediately  upon  the  filing  of  such  application  cause 
'notice  of  the  filing  thereof  to  be  published  once  in  each 
'week  for  four  consecutive  weeks  in  some  newspaper  pub- 
'lished  in  the  county,  or  if  there  is  no  newspaper  published 
'in  the  county  then  in  a  newspaper  published  in  one  of  the 
'counties  nearest  thereto.  The  notice  may  be  substantially 
'as  follows: 

REGISTRATION  OF  LAND  TITLE. 

In  the  matter  of  the  application  of to  register  the  title 

to  (here  insert  description  of  land  as  in  the  application,  and  in  case 
any  person  is  named  as  defendant,  the  name  of  such  persons  defend- 
ant). To  all  whom  it  may  concern: 

Take  Notice,  That  on  the day  of A.  D ,  an 

application  was  filed  by  said in  the Court  of 

County,  for  initial  registration  of  the  title  to  the  land  above 

described.  Now,  unless  you  appear  on  or  before  the  day  of 

,  A.  D (the  time  shall  not  be  less  than  thirty  days  after 

the  filing  of  such  application)  and  show  cause  why  such  application 
shall  not  be  granted,  the  same  will  be  taken  as  confessed,  and  a 
decree  will  be  entered  according  to  the  prayer  of  the  application,  and 
you  will  be  forever  barred  from  disputing  the  same. 

In  uncontested  cases  the  publication  of  the  notice  is 
usually  attended  to  by  the  registrar. 

The  expense  of  publication  in  Cook  County  is  $2 
irrespective  of  the  length  of  the  notice. 

'Clerk  to  send  copy  of  publication  by  mail.]  §21.  The 
'clerk  shall  also  within  ten  days  after  the  first  publication, 
'send  a  copy  thereof  by  mail  addressed  to  such  defendants 
'whose  places  of  residence  are  stated  in  the  application  and 
'whose  appearance  is  not  entered  and  who  are  not  served 
'with  process.  The  certificate  of  the  clerk  that  he  has  sent 
'such  notice  in  pursuance  of  this  section  shall  be  evidence 


30  LAND  REGISTRATION  IN  ILLINOIS. 

'thereof.  Other  or  further  notice  of  such  application  may 
'be  given  in  such  manner  and  to  such  persons  as  may  be 
'directed  by  the  court  or  any  judge  thereof/ 

The  usual  affidavit  of  non-residence  required  by  the 
chancery  practice  where  non-resident  defendants  are  to 
be  notified,  is  not  required  or  needed,  since  the  applica- 
tion must  set  forth  the  facts  as  to  the  residence  of  the 
defendants. 

'Who  may  oppose  application — answer  to  be  verified.]  §  22. 
'Any  person  interested,  whether  named  as  defendant  or 
'not,  may  upon  entering  his  appearance  and  answering  the 
'application  within  the  time  allowed  by  this  act,  or  such 
'further  time  as  shall  be  allowed  by  the  court,  oppose  any 
'such  application  or  file  a  cross  application  in  like  form, 
'as  in  case  of  an  original  application,  to  have  the  title 
'registered  in  his  behalf.  In  either  case  he  shall  state  par- 
'ticularly  what  his  interest  is  and  full  answer  make  to  each 
'and  every  of  the  material  allegations  of  the  application, 
'admitting,  avoiding  or  traversing  the  same  or  showing 
'some  cause  in  law  why  the  same  need  not  be  so  admitted, 
'avoided  or  traversed.  Such  answer  shall  be  verified  by 
'the  affidavit  of  himself  or  his  agent  having  knowledge  of 
'the  facts.  The  answer  shall  have  no  other  or  greater 
'weight  as  evidence  than  the  application.' 

Under  the  standing  rules  of  the  circuit  and  superior 
courts  of  Cook  County,  a  defendant  in  a  chancery  case, 
on  entering  his  appearance,  is  entitled  to  twenty  days 
within  which  to  plead  answer  or  demur.  The  rule 
would  seem  to  extend  to  registration  cases,  although 
the  question  has  not  yet  been  passed  upon. 

All  persons  having  adverse  claims  are  to  be  named  in 
the  application.  They  thereby  become  parties  defend- 
ant.1 Under  the  Torrens  act,  as  under  the  Burnt  Rec- 
ord act,2  it  is  sufficient  to  name  such  persons,  and  the 

1  §§  11,  13. 

2  Smith  v.  Hutchinson,  108  111.  662;  Gage  v.  Caraher,  125  111.  447. 


THE  ILLINOIS  TORRENS  LAW.  31 

irregularity  OT  invalidity  of  the  adverse  claim  need  not 
be  alleged  in  the  application.  The  above  section 
requires  the  defendant  to  state  particularly  what  his 
interest  is,  and  to  verify  his  answer.  Upon  each  party 
rests  the  burden  of  proof  to  maintain  his  own  title. 

So  in  cases  where  the  land  is  subject  to  tax  deed,  or 
other  cloud,  the  applicant  names  the  holder  as  a  defend- 
ant. It  then  devolves  upon  the  latter  to  allege  in 
his  answer  particularly  what  his  interest  is,  as  well  as 
to  also  make  answer  to  the  allegations  of  the  petition, 
and  to  support  the  allegations  of  the  answer  by  requi- 
site proof.  This  throws  upon  the  holder  of  the  tax 
deed  the  burden  of  proof  as  to  its  validity.1 

This  section  authorizes  no  demurrer,  plea  or  plead- 
ing other  than  an  answer,  and  if  a  demurrer  or  plea  be 
filed,  it  will  be  stricken  from  the  files  upon  motion.2 

Applicants  seeking  the  removal  of  tax  titles  as 
clouds,  can  be  granted  relief  only  upon  equitable  terms, 
which,  in  general,  require  that  before  the  issue  of  the 
certificate  of  title,  the  applicant  shall  pay  to  the  holder 
of  the  tax  title,  or  into  court  for  his  use,  a  sum  equal  to 
the  amount  for  which  the  tax  sale  was  made,  and  all 
subsequent  taxes,  assessments  and  costs  paid  by  such 
holder,  together  with  legal  interest  thereon.3  Where 
the  tax  title  accrued  against  a  former  owner,  and  the 
applicant  has  paid  taxes  and  had  possession  for  seven 
consecutive  years,  reimbursement  to  the  holder  of  the 
tax  title  is  not  required.4 

'When  default  may  be  entered.]  §  23.  If  any  person 
'shall  fail  to  appear  within  the  time  required  of  him  by 

1  So  held  by  Clifford,  Gibbons,  Tuthill  and  Dunne,  J.  J. 

2  14th  Ward  Building  &  Loan  Ass'n  v.  Glos,  Circuit  Court  of  Cook 
County.    Dunne,  J.,  in  Land  Registration  No.  278. 

s  Gage  v.  Caraher,  125  111.  447. 

<  Gage  v.  Consumers'  Eectric  Light  Co.  (111.  Sup.  Ct.),  33  Legal 
News,  154. 


32  LAND  REGISTRATION  IN  ILLINOIS. 

'summons  duly  served  upon  him  or  within  the  time  required 
'by  any  notice  given  in  pursuance  of  this  act,  Or  appearing 
'shall  fail  to  answer  the  application  as  herein  provided,  his 
'default  may  be  entered  and  the  application  taken  as  con- 
'fessed,  and  upon  report  of  examiner  showing  that  the 
'facts  stated  in  the  application  are  true  and  the  applicant 
Ms  the  owner  of  the  land  or  interested  therein,  as  set  forth 
'in  the  application,  the  court  may  grant  an  order  or  decree, 
'in  accordance  with  the  prayer  of  the  application.' 

Interlocutory  orders  of  default  may  be  entered,  but, 
in  general,  all  defendants  not  appearing  are  defaulted 
by  the  terms  of  the  final  decree. 

'Court  not  to  be  bound  by  report  of  examiner.]  §  24.  The 
'court  shall  in  no  case  be  bound  by  the  report  of  an 
'examiner  of  title,  but  may  require  other  or  further  proof.' 

The  spirit  of  the  act  contemplates  the  concurrence 
of  registrar,  examiner  and  the  court  before  issue  of  a 
certificate  of  title.  The  court  of  course  is  the  final  arbi- 
ter, the  registrar  and  examiner  being  at  all  times  under 
its  direction  and  control. 

'What  the  court  may  decree.]  §25.  The  court  may,  in 
'any  proceeding  under  this  act,  find  and  decree  in  whom 
'the  title  to  or  any  interest  in  the  land  is  vested,  whether 
'in  the  applicant  or  in  any  other  person,  and  remove  clouds 
'upon  the  title,  and  also  whether  the  same  is  subject  to  any 
'lien  or  incumbrance,  estate,  trust  or  interest,  and  declare 
'the  same,  and  may  order  the  registrar  of  titles  to  register 
'such  title  or  interest,  and  in  case  the  same  is  subject  to 
'any  lien,  incumbrance,  estate,  trust  or  interest,  give  direc- 
'tions  as  to  the  manner  and  order  in  which  the  same  shall 
'appear  upon  the  certificate  of  title  to  be  issued  by  the 
'registrar,  and  generally  may  make  any  and  all  such  orders 
'and  decrees  as  shall  be  according  to  equity  in  the  premises 
'and  as  shall  be  in  conformity  to  the  principles  of  this  act.' 

This  section  in  connection  with  §  15  confers  upon  the 
court  full  power  to  adjudicate  all  unsettled  questions 


THE  ILLINOIS  TORRENS  LAW.  33 

affecting  the  title  at  the  time  of  initial  registration. 
The  registration  proceeding  is  made  one  for  purifica- 
tion. Among  the  defects  most  frequently  found  are  tax 
certificates^  tax  deeds,  mortgages  paid  or  outlawed 
and  unreleased  of  record,  forfeited  or  abandoned  con- 
tracts of  sale,  errors  in  names  of  parties  to  convey- 
ances, erroneous  descriptions,  irregularities  in  attesta- 
tion of  conveyances  and  adverse  claims  of  title  without 
substantial  merit. 

It  will  be  seen  that  the  act  provides  much  the  best 
and  speediest  method  for  final  settlement  of  clouded  or 
disputed  titles.  The  summons  is  returnable  in  not  less 
than  ten  days,  §  19.  The  examiner  may  proceed  with 
his  investigation  immediately  upon  the  filing  of  the 
application,  §  18.  The  court  is  always  open,  and  orders 
and  decrees  in  these  cases  may  be  entered  in  vaca- 
tion as  in  term  time,  §  15.  Final  decrees  are  entered  on 
motion  to  confirm  the  report  of  the  examiner.1  The  cir- 
cuit court  of  Cook  County  has  held  uniformly  and  in 
accordance  with  the  spirit  of  the  act,  that  registration 
cases,  both  contesed  and  uncontested,  should  be 
promptly  disposed  of  without  the  delay  usually  attend- 
ant upon  chancery  cases  standing  upon  a  calendar  for 
final  hearing  or  contested  motions.2 

'Upon  whom  decree  binding — appeal — writ  of  error — when 
'court  may  review  case.]  §  26.  The  order  or  decree  so  made 
'and  entered  shall,  except  as  herein  otherwise  provided, 
'be  forever  binding  and  conclusive  upon  all  persons, 
'whether  mentioned  by  name  in  the  petition  or  included  in 
'  "All  whom  it  may  concern."  It  shall  not  be  an  exception 
'to  such  conclusiveness  that  the  person  is  an  infant,  lunatic 
'or  is  under  any  disability,  but  such  person  may  have 
'recourse  upon  the  indemnity  fund  hereinafter  provided 

1  Gage  v.  Consumers'  Electric  Light  Co.,  Supreme  Court  of  Illinois, 
33  Legal  News,  154. 

2  Clifford,  Gibbons,  Dunne,  Neeley  and  Tuthill,  J.J. 

3 


34  LAND  REGISTRATION  IN  ILLINOIS. 

'for,  for  any  loss  he  may  suffer  by  reason  of  being  so  con- 
'cluded.  An  appeal  may  be  allowed  to  the  Supreme  Court 
'if  prayed  at  the  time  of  entering  the  order  or  decree  and 
'upon  like  terms  as  in  other  cases  in  chancery.  A  writ  of 
'error  may  be  sued  out  of  the  Supreme  Court  within  two 
'years  after  the  entry  of  the  order  or"  decree,  and  not 
'afterwards.  Any  person  having  an  interest  in  or  lien 
'upon  the  land  who  has  not  been  actually  served  with  proc- 
'ess  or  notified  of  the  filing  of  such  application  or  the 
'pendency  thereof,  may,  at  any  time  within  two  years  after 
'the  entry  of  such  order  or  decree,  and  not  afterwards, 
'appear  and  file  his  sworn  answer  to  such  application  in 
'like  manner  as  is  hereinbefore  prescribed  for  making 
'answer:  Provided,  The  affidavit  shall  also  state  that  such 
'person  had  no  notice,  information  or  belief  of  the  filing 
'of  such  application  or  the  pendency  of  the  proceeding 
'until  within  three  months  of  the  time  of  the  filing  of  such 
'answer.  Upon  the  filing  of  such  answer,  and  not  less  than 
'ten  days'  notice  being  given  to  the  applicant,  the  court 
'shall  proceed  to  review  the  case,  and  if  the  court  is  satis- 
'fied  that  the  order  or  decree  ought  to  be  opened,  an  order 
'shall  be  entered  to  that  effect  and  the  court  may  proceed 
'to  review  the  proceeding  and  make  such  order  in  the  case 
'as  shall  be  according  to  equity  in  the  premises.  An  appeal 
'may  be  allowed  or  writ  of  error  sued  out,  in  such  case, 
'within  a  like  time  and  in  like  manner  as  in  the  case  of  an 
'original  order  or  decree  under  this  act,  and  not  otherwise.' 

It  is  within  the  legislative  competency  of  the  state 
to  make  or  not  to  make  exceptions  in  favor  of  infants  or 
other  persons  under  disability.1 

It  is  to  be  noted,  in  this  connection,  that  losses  sus- 
tained by  infants,  or  other  persons  under  disability, 
are  made  payable  from  the  indemnity  fund2  and  that 
the  period  for  proceedings  against  that  fund  is  extend- 
ed in  favor  of  all  persons  under  disability  until  two 
years  after  the  disability  is  removed.3 

1  Vance  v.  Vance,  108  U.  S.  514.      *  §  103. 

2  §  101. 


THE  ILLINOIS  TORRENS  LAW.  35 

'Within  what  time  action  may  be  commenced.]  §27.  No 
'person  shall  commence  any  action  at  law  or  in  equity  for 
'the  recovery  of  lands  or  assert  any.  interest  or  right  in  or 
'lien  or  demand  upon  the  same,  or  make  entry  thereon 
'adversely  to  the  title  or  interest  as  found,  ordered  or 
'decreed  by  the  court,  unless  within  two  years  after  the 
'entry  of  the  order  or  decree.  This  section  shall  be  con- 
'strued  as  giving  such  right  of  action  to  such  persons  only 
'as  shall  not,  because  of  some  irregularity,  insufficiency, 
'or  for  some  other  cause,  be  bound  and  concluded  by  such 
'order  or  decree.' 

'Within  what  time  any  person  not  barred  or  concluded  by 
'such  order  or  decree  may  assert  his  claim.]  §28.  Any 
'person  having  any  interest,  right,  title,  lien  or  demand, 
'whether  vested,  contingent  or  inchoate,  in,  to  or  upon 
'registered  land,  which  existed  at  the  time  the  land  is  first 
'registered,  and  upon  or  for  which  no  cause  of  action  shall 
'have  accrued  at  the  date  of  the  registration  of  the  land, 
'and  who  has  not  become  barred  or  concluded  by  such 
'order  or  decree,  may,  prior  to  the  expiration  of  said  twa 
'years  after  such  registration,  file  in  the  registrar's  office 
'a  notice,  under  oath,  setting  forth  his  interest,  right,  title, 
'lien  or  demand,  and  how  and  under  whom  derived,  and  the 
'character  and  nature  thereof,  and  if  such  counter-claim 
•is  so  filed  an  action  may  be  brought  to  assert  or  recover 
'or  enforce  the  same  at  any  time  within  one  year  after  the 
'right  of  action  shall  have  accrued  thereon,  and  not  after- 
'wards.  It  shall  be  the  duty  of  a  life  tenant  or  trustee  to 
'file  such  counter-claim  on  behalf  of  any  remainderman  or 
'reversioner,  whether  the  remainder  or  reversion  be  at  the 
'time  vested  or  contingent,  and  of  a  guardian  to  file  such 
'counter-claim  on  behalf  of  his  ward.' 

This  and  the  preceding  section,  in  connection  with 
§§  26  and  40,  limit  the  time  for  actions  to  upset  the  first 
certificate  of  title.  They  constitute  a  valid  statute  of 
limitations.1 

i  People  v.  Simon,  176  111.  165. 


36  LAND  REGISTRATION  IN  ILLINOIS. 

These  sections  can  have  no  unfavorable  effect  upon 
the  negotiability  of  a  registered  title  during  its  first 
two  years.  All  persons  named  as  defendants  and 
served  with  process  are  bound  by  the  decree  from  its 
entry.  This  and  the  preceding  section  apply  only  to 
persons  not  so  bound.  The  probability  of  the  existence 
of  such  persons  is  readily  determined  by  examination 
of  the  proceeding  for  initial  registration.  If  that  pro- 
ceeding has  been  properly  conducted,  all  necessary  par- 
ties will  be  before  the  court,  and  there  will  be  no  per- 
sons not  bound  by  the  first  certificate  of  title. 

REGISTERING  THE  TITLE. 

'Registering  the  title.]  §29.  Upon  the  filing  of  a  cer- 
tificate signed  by  the  clerk  giving  the  effect  of  the  order 
'or  decree  of  the  court  or  a  copy  of  such  order  or  decree 
'in  the  registrar's  office,  the  registrar  shall  proceed  to 
'register  the  title  or  interest  pursuant  to  the  terms  of  the 
'order  or  decree,  in  the  manner  following: 

• 

'Form  of  certificate  of  title.]  §  30.  He  shall  make  out 
'a  certificate  of  title  which  may,  subject  to  such  change 
'as  the  case  may  require,  be  substantially  as  follows: 

FIRST  CERTIFICATE  OF  TITLE  PURSUANT  TO  ORDER  OF 
COURT  OF COUNTY. 

State  of  Illinois,  1 

County.  / 

of  (residence,  and  if  a  minor  give  his  age;    if 

under  other  disability,  state  the  nature  of  the  disability),  married 
to  (name  of  husband  or  wife,  or  if  not  married,  say  not  married), 
is  the  owner  of  an  estate  in  fee  simple  (or  as  the  case  may  be)  in  the 
following  land  (here  describe  the  premises)  subject  to  the  estates, 
easements,  incumbrances  and  charges  hereunder  noted.  (In  case 
of  trust,  condition  or  limitation,  say  "in  trust"  or  "upon  condition" 
or  "with  limitation"  as  the  case  may  be.) 

Witness  my  hand  and  official  seal  this  (date). 


[SEAL.]  Registrar. 

'Subsequent  certificates.]  §  31.  All  subsequent  certifi- 
'cates  may  be  in  like  form,  except  that  in  place  of  the 
'words  "First  certificate,"  etc.,  shall  be  the  words  "Transfer 


THE  ILLINOIS  TORRENS  LAW.  37 

'from  No "  (the  number  of  the  next  previous  cer- 
tificate), also  the  words  "First  registered "  (date  of 

first  registration).' 

The  chain  of  a  registered  title  thus  follows  from  one 
certificate  of  title  to  another,  each  showing  the  nota- 
tions regarding  the  former  and  succeeding  owner.  An 
abstract  of  title  to  registered  land,  if  one  be  needed, 
may  be  made  with  the  utmost  accuracy  and  ease. 

'The  words  "heirs  and  assigns."]  §  32.  The  words  "heirs 
'and  assigns"  shall  not  in  any  case  be  necessary  to  create 
'a  fee  simple  estate  of  inheritance.' 

'Certificate — what  it  should  contain.]  §  33.  Every  certifi- 
'cate  shall  bear  date  of  the  day  and  year  of  its  issue,  and 
'be  under  the  hand  and  official  seal  of  the  registrar,  and 
'be  numbered  in  the  order  of  its  issue.  It  shall  state 
'whether  the  owner  (except  in  the  case  of  a  corporation) 
'is  married  or  not  married,  and  if  married,  the  name  of 
'the  husband  or  wife.  If  the  owner  is  a  minor  it  shall  state 
'his  age,  if  under  any  other  disability,  the  nature  of  the 
'disability.  The  registrar  shall  note  at  the  end  of  the 
'certificate,  in  such  manner  as  to  show  and  preserve  their 
'priorities,  the  particulars  of  all  estates,  mortgages,  incum- 
'brances  and  charges  to  which  the  owner's  title  is  subject.' 

'Certificate  where  two  or  more  are  interested  in  the  land.] 
'§  34.  In  all  cases  where  two  or  more  persons  are  entitled 
'as  tenants  in  common  to  an  estate  in  registered  land,  such 
'persons  may  receive  one  certificate  for  the  entirety,  or  each 
'may  receive  a  separate  certificate  for  his  undivided  share.' 

'  "Register  of  titles" — what  to  contain.]  §  35.  The  regis- 
'trar  shall  keep  a  book,  to  be  known  as  the  "Register  of 
'Titles,"  wherein  he  shall  enter  all  first  and  subsequent 
'  "original"  certificates  of  title  by  binding  or  recording 
'them  therein,  in  the  order  of  their  numbers,  with  appro- 
'priate  blanks  for  the  entry  of  memorials  and  notations 
'allowed  by  this  act.  Each  certificate,  with  such  blanks, 
'shall  constitute  a  separate  folium  of  such  book.  All 
'memorials  and  notations  that  may  be  entered  upon  the 


38  LAND  REGISTRATION  IN  ILLINOIS. 

'register  under  the  terms  of  this  act  shall  be  entered  upon 
'the  folium  constituted  by  the  last  certificate  of  title  of  the 
'land  to  which  they  relate.  Whenever  the  term  certificate 
'of  title  is  used  in  this  act,  it  shall  be  deemed  as  including 
'all  memorials  and  notations  thereunder  noted.' 

The  "register  of  titles"  is  like  a  ledger,  where  every- 
thing that  can  affect  the  title  to  a  given  piece  of  prop- 
erty is  posted,  up  to  date,  at  one  page. 

'Duplicate  certificate  of  title — to  be  known  as  owner's  dupli- 
'cate.J  §  36.  The  registrar  shall,  at  the  same  time  that  he 
'makes  out  his  original  certificate  of  title,  make  out  an 
'exact  duplicate  thereof,  with  the  memorials  and  notations 
'thereunder  noted,  which  shall  be  delivered  to  the  owner 
'and  shall  be  known  as  the  owner's  duplicate.' 

Owner's  duplicate  certificates  of  title  are  engraved 
and  engrossed  upon  heavy  parchment  paper,  and  bear 
upon  their  reverse  a  plat  showing  the  size  and  location 
of  the  land  if  a  lot  in  a  subdivision.  The  latter  is  found 
a  convenience. 

'Owner's  receipt  for  certificate  of  title.]  §  37.  For  the 
'purpose  of  preserving  evidence  of  the  handwriting  of  the 
'owner  in  his  office,  it  shall  be  the  duty  of  the  registrar  to 
'take  from  the  owner,  in  every  case  where  it  is  practicable 
'so  to  do,  his  receipt  for  the  certificate  of  title,  or  whatever 
'paper  shall  be  issued  to  him,  signed  by  the  owner  in  person. 
'When  such  receipt  is  signed  in  the  registrar's  office  it  may 
'be  witnessed  by  the  registrar  or  some  deputy.  If  signed 
'elsewhere  it  may  be  acknowledged  before  any  officer 
'authorized  to  take  acknowledgment  of  deeds.  When  so 
'signed  and  witnessed  or  acknowledged,  such  receipt 
'shall  be  prima  facie  evidence  of  the  genuineness  of  such 
'signature.' 

This  requirement  is  to  aid  the  registrar  in  complying 
with  §  47. 

'In  case  of  final  registration  the  certificate  of  title  shall 


THE  ILLINOIS  TORRENS  LAW.  39 

'relate  back,  etc.]  §  38.  In  every  case  of  final  [initial] 
'registration  the  certificate  of  title  shall  relate  back  to  and 
'take  effect  as  of  the  date  of  the  order  or  decree  directing 
'the  registration,  and  all  dealings  with  the  land,  and  all 
'statutory  or  other  liens  upon  the  same  subsequent  to  the 
'filing  of  the  application  shall  be  subject  to  such  order  or 
'decree  of  the  court.' 

The  filing  of  the  application  in  a  court  of  record  is 
made  lis  pendens  of  the  proceedings,  and  an  interest 
subsequently  acquired  in  the  land  is  made  subject  to 
the  decree. 

Where  no  appeal  is  prayed  from  the  decree,  the  first 
certificate  of  title  is  usually  issued  the  day  of  its  entry. 

'Such  certificate  to  be  prima  facie  evidence.]  §  39.  Such 
'certificate,  with  the  memorials  and  notations  thereunder 
'noted,  and  any  copy  thereof  duly  certified  under  the  hand 
'and  seal  of  the  registrar,  and  the  owner's  duplicate  certifi- 
'cate  shall  until  the  expiration  of  the  time  herein  limited 
'to  bring  some  action  or  to  contest  the  title  of  the  regis- 
tered owner,  be  in  all  courts  and  places  prima  facie 
'evidence  that  the  provisions  of  the  law  have  been  complied 
'with,  and  that  such  certificate  of  title  has  been  issued  in 
'compliance  with  a  valid  order  or  decree,  and  that  the  title 
'to  the  land  is  as  therein  stated,  and  after  the  expiration 
'of  such  time  limited  shall  be  conclusive  evidence  of  the 
'same  facts.' 

'The  rights  of  registered  owners.]  §  40.  The  registered 
'owner  of  any  estate  or  interest  in  land  brought  under  this 
'act,  shall,  except  in  cases  of  fraud  to  which  he  is  a  party, 
'or  of  the  person  through  whom  he  claims  without  valuable 
'consideration  paid  in  good  faith,  hold  the  same  subject 
'only  to  such  estates,  mortgages,  liens,  charges  and  inter- 
'ests  as  may  be  noted  in  the  last  certificate  of  title  in  the 
'registrar's  office  and  free  from  all  others  except: 

'1.  Any  subsisting  lease  or  agreement  for  a  lease  for  a 
'period  not  exceeding  five  years,  where  there  is  actual 


40  LAND  REGISTRATION  IN  ILLINOIS. 

'occupation  of  the  land  under  the  lease.  The  term  lease 
'shall  include  a  verbal  letting. 

'2.  All  public  highways  embraced  in  the  description  of 
'the  lands  included  in  the  certificate  shall  be  deemed  to  be 
'excluded  from  the  certificate. 

'3.  Any  subsisting  right  of  way  or  other  easement, 
'however  created,  upon,  over  or  in  respect  of  the  land. 

'4.  Any  tax  or  special  assessment  for  which  a  sale  of 
'the  land  has  not  been  had  at  the  date  of  the  certificate 
'of  title. 

'5.  Such  right  of  appeal,  writ  of  error,  right  to  appear 
'and  contest  the  application,  and  of  such  action  or  to  make 
'counterclaim  as  is  allowed  by  this  act.' 

The  effect  of  this  section  is  to  give  to  the  bona  fide 
purchaser  or  incumbrancer  a  like  security  to  that  given 
to  the  purchaser  of  negotiable  paper.  The  title  of  such 
purchaser  or  incumbrancer  cannot  be  upset.  This  is  a 
dominant  feature  of  the  system. 

For  the  method  by  and  extent  to  which  the  certifi- 
cate of  title  may  be  affected  by  subsequent  judicial 
proceedings  see  §  93,  94  and  95. 

'Possession  after  land  registered.]  §  41.  After  land  has 
'been  registered  no  title  thereto  adverse  or  in  derogation 
'to  the  title  of  the  registered  owner  shall  be  acquired  by 
'any  length  of  possession.' 

After  registration  all  rights  whatsoever  appear  only 
upon  the  certificate  of  title  and  mere  possession 
becomes  no  notice  thereof.  Registered  owners  are  thus 
guaranteed  against  encroachment  or  risk  of  loss  by- 
adverse  possession.  No  squatter's  possession  can  ever 
ripen  into  title. 

'Fraud — transfer  from  registered  owner — effect  of.]  §  42. 
'Except  in  case  of  fraud,  and  except  as  herein  otherwise 
'provided,  no  person  taking  a  transfer  of  registered  land, 
'or  any  estate  or  interest  therein,  or  of  any  charge  upon 
'the  same,  from  the  registered  owner  shall  be  held  to 


THE  ILLINOIS  TORRENS  LAW.  41 

'inquire  into  the  circumstances  under  which,  or  the  con- 
'sideration  for  which  such  owner  or  any  previous  registered 
'owner  was  registered,  or  be  affected  with  notice,  actual 
'or  constructive,  of  any  unregistered  trust,  lien,  claim, 
'demand  or  interest;  and  the  knowledge  that  any  unregis- 
tered trust,  lien,  claim,  demand  or  interest  is  in  existence 
'shall  not  of  itself  be  imputed  as  fraud.' 

This  again  affirms  the  dominant  principle  of  the  sys- 
tem by  which  absolute  immunity  is  given  the  bona  fide 
purchaser  or  incumbrancer  for  valuable  consideration 
paid  in  good  faith.  See  §  40. 

The  Australian  authorities  upon  what  constitutes 
such  fraud  as  to  invalidate  the  certificate,  will  be  found 
gathered  in  the  Torrens  Australian  Digest  (1899)  page 
102. 

'Specific  performance — certificate  of  title — conclusive  evi- 
'dence.]  §  43.  In  any  suit  for  specific  performance  brought 
'by  a  registered  owner  of  any  land  under  the  provisions 
'of  this  act,  against  a  person  who  may  have  contracted  to 
'purchase  such  land,  not  having  notice  of  any  fraud  or 
'other  circumstances  which,  according  to  the  provisions  of 
'this  act,  would  affect  the  right  of  the  vendor,  the  certifi- 
'cate  of  title  of  such  registered  owner  shall  be  held  in  every 
'court  to  be  conclusive  evidence  that  such  registered  owner 
'has  a  good  and  valid  title  to  the  land,  and  for  the  estate 
'or  interest  therein  mentioned  or  described.' 

'In  cases  of  ejectment.]  §  44.  In  any  action  or  proceed- 
'ing  brought  for  ejectment,  partition  or  possession  of  land, 
'the  certificate  of  title  of  a  registered  owner  shall,  except 
'as  to  any  person  not  bound  by  the  order  or  decree  of  the 
'court,  or  by  some  limitation  herein  or  in  some  other  statute 
'contained,  be  held  to  be  conclusive  evidence  that  such 
'registered  owner  has  a  good  and  valid  title  to  the  land, 
'and  for  the  estate  or  interest  therein  mentioned  or 
'described,  subject  only  to  such  estates,  mortgages,  liens, 
'charges  and  interests  as  may  be  noted  thereunder,  and 
'unless  it  shall  otherwise  appear  by  such  notations  that 


42  LAND  REGISTRATION  IN  ILLINOIS. 

'such  registered  owner  is  entitled  to  the  possession  of  said 
'land.' 

'Memorial.]  §  45.  Whenever  a  memorial  or  notation 
'has  been  entered  as  permitted  by  this  act,  the  registrar 
'shall  carry  the  same  forward  upon  all  certificates  of  title 
'until  the  same  is  canceled  in  some  manner  authorized  by 
'this  act.' 

'The  effect  of  bringing  land  under  this  act.]  §  46.  The 
'bringing  of  land  under  this  act  shall  imply  an  agreement 
'which  shall  run  with  the  land  that  the  same  shall  be 
'subject  to  the  terms  of  the  act  and  all  amendments  and 
'alterations  thereof.  And  all  dealings  with  land  or  any 
'estate  or  interest  therein,  after  the  same  has  been  brought 
'under  this  act,  and  all  liens,  incumbrances  and  charges  upon 
'the  same  subsequent  to  the  first  registration  thereof,  shall 
'be  deemed  to  be  subject  to  the  terms  of  this  act.' 

This  section  is  declaratory,  as  probably  the  same 
effect  would  attach  to  the  bringing  of  land  under  the 
act,  were  it  omitted. 

TRANSFER. 

'Transfer.]  §  47.  A  registered  owner  of  land  desiring  to 
'transfer  his  whole  estate  or  interest  therein,  or  some  dis- 
'tinct  part  or  parcel  thereof,  or  some  undivided  interest 
'therein,  or  to  grant  out  of  his  estate  an  estate  for  life  or 
'for  a  term  of  not  less  than  ten  years,  may  execute  to  the 
'intended  transferee  a  deed  or  instrument  of  conveyance 
'in  any  form  authorized  by  law  for  that  purpose.  And 
'upon  filing  such  deed  or  other  instrument  in  the  registrar's 
'office  and  surrendering  to  the  registrar  the  duplicate  certifi- 
'cate  of  title,  and  upon  its  being  made  to  appear  to  the 
'registrar  that  the  transferee  has  the  title  or  interest  pro- 
'posed  to  be  transferred  and  is  entitled  to  make  the  con- 
'veyance  and  that  the  transferee  has  the  right  to  have  such 
'estate  or  interest  transferred  to  him,  he  shall  make  out 
'and  register  as  hereinbefore  provided  a  new  certificate 
'and  also  an  owner's  duplicate  certifying  the  title  to  the 
'estate  or  interest  in  the  land  desired  to  be  conveyed  to  be 


THE  ILLINOIS  TORRENS  LAW.  43 

'in  the  transferee,  and  shall  note  upon  the  original  and 
'duplicate  certificate  the  date  of  the  transfer,  the  name  of 
'the  transferee  and  the  volume  and  folium  in  which  the  new 
'certificate  is  registered,  and  shall  stamp  across  the  origi- 
'nal  and  surrendered  duplicate  certificate  the  word  "can- 
'celed."' 

The  registrar,  in  conducting  a  transfer,  examines 
fully  into  every  matter  connected  therewith.  He  satis- 
fies himself  as  to  the  identity  of  the  parties  by  much 
the  same  rules  observed  by  a  bank  in  dealing  with 
strangers.  The  increased  inconvenience  is  slight  and 
every  known  method  of  checks  and  verification  should 
be  used  to  prevent  improper  transfers.  Forgery  thus 
becomes  almost  impossible.  Nothing  can  be  done  with- 
out the  surrender  of  the  outstanding  duplicate  certifi- 
cate of  title.  At  every  transfer  every  question  of  form 
and  substance  that  can  possibly  affect  the  title 
intended  to  be  transferred  is  then  and  there  settled 
once  for  all.  Upon  this  rests  the  efficiency  of  the 
system. 

'When  only  a  part  of  land  transferred.]  §  48.  When  only 
'a  part  of  the  land  described  in  a  certificate  is  transferred, 
'or  some  estate  or  interest  in  the  land  is  to  remain  in  the 
'transfer  [er],  a  new  certificate  shall  be  issued  to  him  for 
'the  part,  estate  or  interest  remaining  in  him.' 

'When  transfer  of  registered  land  shall  be  deemed  to  be 
'registered.]  §  49.  Every  transfer  of  registered  land  shall 
'be  deemed  to  be  registered  under  this  act,  when  the  new 
'certificate  to  the  transferee  shall  have  been  entered,  as  in 
'the  case  of  first  registration;  and  all  other  dealings  shall 
'be  considered  as  registered  when  the  memorial  or  notation 
'shall  have  been  entered  in  the  register  upon  the  folium 
'constituted  by  the  existing  certificate  of  title  of  the  land. 
'But,  for  the  protection  of  the  transferee  or  person  claiming 
'through  any  transfer  or  dealing,  the  registration  shall 
'relate  back  to  the  time  of  filing  in  the  registrar's  office  the 


44  LAND  REGISTRATION  IN  ILLINOIS. 

'deed,  instrument  or  notice,  pursuant  to  which  the  trans- 
'fer  memorial  or  notation  is  made.' 

'Filing  deeds,  etc. — marked.]  §  50.  The  registrar  shall 
'mark  as  filed  every  deed,  mortgage,  lease  and  other  instru- 
'ment  which  may  be  filed  in  his  office  in  the  order  of  its 
'receipt,  and  shall  note  thereon  at  the  date  of  filing  the 
'minute,  hour,  day  and  year  it  is  received.  When  the  date 
'of  filing  any  instrument  is  required  to  be  entered  upon  the 
'register  it  shall  be  the  same  as  that  endorsed  upon  such 
'instrument.' 

'Instruments  to  be  kept  in  office.]  §  51.  All  instruments, 
'notices  and  papers  required  or  permitted  by  this  act  to  be 
'filed  in  the  office  of  the  registrar  shall  be  retained  and 
'kept  in  such  office.  They  shall  be  numbered  consecutively 
'and  a  list  of  the  same  kept  in  a  book  for  that  purpose, 
'describing  the  same  as  "warranty  deeds,"  "quit-claim 
'deed,"  "mortgage,"  etc.' 

'Forms  of  deeds,  etc.]  §  52.  Like  forms  of  deeds,  mort- 
'gages,  leases  or  other  instruments  as  are  now  or  may  here- 
'after  be  sufficient  in  law  for  the  purpose  intended,  may  be 
'used  in  dealing  with  registered  land  and  any  estate  or 
'interest  therein.' 

'Address  of  owners — notice.]  §  53.  On  all  instruments 
'presented  to  the  registrar  for  registration  shall  be 
'endorsed  the  name  and  address  of  the  person  so  presenting 
'the  same,  and  all  notices  by  the  registrar  or  other  person 
'relating  to  the  land  therein  described  may  be  served  on 
'such  person  at  such  address.  The  address  may  be  changed 
'from  time  to  time  by  such  person  filing  with  the  registrar 
'a  written  notice  of  such  change.' 

'Deeds,  etc.,  only  authority  to  registrar  to  make  transfer.] 
'§  54.  A  deed,  mortgage,  lease  or  other  instrument  pur- 
'porting  to  convey,  transfer,  mortgage,  lease,  charge  or 
'otherwise  deal  with  registered  land,  or  any  estate  or  inter- 
'est  therein,  or  charge  upon  the  same,  other  than  a  will  or 
'lease  not  exceeding  five  years  where  the  land  is  in  actual 
'possession  of  the  lessee  or  his  assigns,  shall  take  effect 
'only  by  way  of  contract  between  the  parties  thereto,  and 


THE  ILLINOIS  TORRBNS  LAW.  45 

'as  authority  to  the  registrar  to  register  the  transfer,  mort- 
'gage,  lease,  charge  or  other  dealing  upon  compliance  with 
'the  terms  of  this  act.  On  the  completion  of  such  registra- 
tion, the  land,  estate,  interest  or  charge  shall  become 
'transferred,  mortgaged,  leased,  charged  or  dealt  with 
'according  to  the  purport  and  terms  of  the  deed,  mortgage, 
'lease  or  other  instrument.' 

This  is  to  be  construed  in  connection  with  §  49.  Deeds 
and  mortgages  of  registered  land,  although  delivered, 
merely  operate  as  powers  of  attorney  or  authority  to 
the  registrar  to  effect  the  proposed  dealing.  Title 
passes,  not  upon  their  delivery,  but  when  the  act  of 
the  registrar  prescribed  in  §  49  is  completed. 

'Taxes — assessments — dower — homestead.]  §  55.  No  trans- 
'fer  of  title  to  the  land,  or  any  estate  or  interest  thereon,  or 
'mortgage,  shall  be  registered  until  it  shall  be  made  to 
'appear  to  the  registrar  that  the  land  has  not  been  sold  for 
'any  tax  or  assessment  upon  which  a  deed  has  been  given, 
'and  the  title  is  outstanding  or  upon  which  a  deed  may 
'thereafter  be  given,  and  that  the  dower,  right  of  dower 
'and  estate  of  homestead,  if  any,  have  been  released  or 
'extinguished,  or  that  the  transfer  or  mortgage  is  intended 
'to  be  subject  thereto,  in  which  case  it  shall  be  so  stated  in 
'the  certificate  of  title.' 

'Transferee  married  or  not.]  §  56.  Every  certificate  of 
'title  to  land  shall  state  whether  the  transferee  (except 
'when  the  latter  is  a  corporation)  is  married  or  not  married, 
'and  if  married  the  name  of  the  husband  or  wife.  The  trans- 
'feree  shall  furnish  the  registrar  the  necessary  information 
'before  he  shall  be  entitled  to  have  the  land  transferred  to 
'him  on  the  register.' 

'Registered  owner — delivering  up  certificate — respecting 
'parcels  of  land  that  may  be  included  in  one  certificate.]  §  57. 
'Upon  the  application  of  any  registered  owner  of  land  held 
'under  separate  certificates  of  title,  or  under  one  certificate, 
'and  delivering  up  of  such  certificate  or  certificates  of  title, 
'the  registrar  may  issue  to  such  owner  a  single  certificate 


46  LAND  REGISTRATION  IN  ILLINOIS. 

'of  title  for  the  whole  of  such  land,  or  several  certificates, 
'each  containing  a  portion  of  such  land  in  accordance  with 
'such  application,  and  as  far  as  the  same  may  be  done  con- 
'sistently  with  any  regulations  at  the  time  being  in  force, 
'respecting  the  parcels  of  land  that  may  be  included  in  one 
'certificate  of  title,  and  upon  issuing  any  such  certificate  of 
'title,  said  registrar  shall  endorse  on  the  last  previous  cer- 
'tificate  of  title  of  such  land  so  delivered  up  a  memorial 
'setting  forth  the  occasion  of  such  cancellation,  and  refer- 
'ring  to  the  volume  and  folium  of  the  new  certificate  or 
'certificates  of  title  so  issued.' 

'When  duplicate  certificate  of  title  lost — evidence — certified 
'copy  of  original  may  be  used.]  §  58.  In  the  event  of  a  dupli- 
cate certificate  of  title  being  lost,  mislaid  or  destroyed,  the 
owner,  together  with  other  persons,  if  any,  having  knowl- 
'edge  of  the  circumstances,  may  make  affidavit  before  the 
'registrar,  or  before  any  officer  authorized  to  administer 
'oaths,  stating  the  facts  of  the  case,  the  names  and  descrip- 
tions of  the  registered  owners,  and  the  particulars  of  all 
'mortgages,  encumbrances  or  other  matters  affecting  such 
'land  and  the  title  thereto  to  the  best  of  applicant's  knowl- 
'edge  and  belief,  and  the  registrar,  if  satisfied  as  to  the 
'truth  of  such  affidavit,  and  the  bona  fides  of  the  transac- 
'tion,  shall  issue  to  the  owner  a  certified  copy  of  the  original 
'certificate  with  the  memorials  and  notations  appearing 
'upon  the  register,  and  shall  note  upon  the  register  the  fact, 
'cause  and  date  of  such  issue,  and  shall  also  mark  upon 
'such  certified  copy:  "Owner's  certified  copy,  issued  in  place 
'of  lost,  (mislaid  or  destroyed,  as  the  case  may  be),  certifi- 
'cate,"  and  such  certified  copy  shall  stand  in  the  place  of 
'and  have  like  effect  as  the  missing  duplicate  certificate.' 

The  practice  outlined  can  result  in  no  loss  or  serious 
inconvenience,  since  one  proposing  to  deal  with  the 
holder  of  the  lost  or  mislaid  duplicate  certificate  will 
make  comparison  of  the  same  with  the  original  certifi- 
cate of  title  in  the  "Register  of  Titles"  before  comple- 
tion of  his  dealing,  when  and  where  the  cancellation 
of  the  first  duplicate  will  be  found  noted. 


THE  ILLINOIS  TORRENS  LAW.  47 

MORTGAGES,  LEASES  AND  OTHER  CHARGES. 

'Mortgages,  leases  and  other  charges.]  §  59.  Every  mort- 
'gage,  lease  for  a  term  not  exceeding  ten  years,  contract  to 
'sell,  and  other  instrument  intended  to  create  a  lien,  incum- 
'brance  or  charge  upon  registered  land  or  any  interest 
'therein  shall  be  deemed  to  be  a  charge  thereon,  and  may 
'be  registered  as  hereinafter  provided.' 

The  ordinary  forms  of  trust  deeds  or  mortgages,  are 
used,  no  new  recitals  or  alterations  being  necessary. 

'On  filing  the  instrument  intended  to  create  charge — pro- 
'ceedings.J  §  60.  On  the  filing  of  the  instrument  intended 
'to  create  the  charge  in  the  registrar's  office,  and  the  pro- 
'duction  of  the  duplicate  certificate  of  title,  and  it  appear- 
'ing  to  the  registrar  that  the  person  intending  to  create  the 
'charge  has  the  title  and  right  to  create  such  charge,  and 
'that  the  person  in  whose  favor  the  same  is  sought  to  be 
'created  is  entitled  by  the  terms  of  this  act  to  have  the  same 
'registered,  he  shall  enter  upon  the  proper  folium  of  the 
'register,  and  also  upon  the  owner's  certificate,  a  memorial 
'of  the  purport  thereof,  and  the  date  of  filing  the  instrument 
'with  a  reference  thereto  by  its  file  number,  which  memo- 
'rial  shall  be  signed  by  the  registrar.  The  registrar  shall 
'also  note  upon  the  instrument  on  file  the  volume  and  fol- 
'ium  of  the  register  where  the  memorial  is  entered.' 

The  registrar  will  also  identify,  by  marking  the  same 
with  a  stamp  prepared  for  the  purpose,  all  notes 
secured  by  the  mortgage  or  trust  deed.  See  §  65  and 
note  thereto. 

'Trust  deed  to  be  deemed  a  mortgage.]  §  61.  A  trust  deed 
'in  the  nature  of  a  mortgage  shall  be  deemed  to  be  a  mort- 
'gage  and  be  subject  to  the  same  rules  as  a  mortgage.' 

'When  mortgage,  etc.,  is  in  duplicate,  triplicate  or  more 
'parts.]  §  62.  When  any  mortgage,  lease,  or  other  instru- 
'ment  creating  or  dealing  with  a  charge  upon  registered 
'land  or  any  estate  or  interest  therein  is  in  duplicate,  trip- 


48  LAND  REGISTRATION  IN  ILLINOIS. 

'licate  or  more  parts,  only  one  of  the  parts  need  be  filed  and 
'kept  in  the  registrar's  office,  but  the  registrar  shall  note 
'upon  the  register  whether  the  same  is  in  duplicate,  tripli- 
'cate,  or  as  the  case  may  be,  and  shall  also  mark  upon  the 
'others  "mortgagee's  duplicate,"  "lessor's  duplicate,"  "les- 
'see's  duplicate,"  or  as  the  case  may  be,  and  note  upon  the 
'same  the  date  of  filing  and  the  volume  and  folium  of  the 
'register  where  the  memorial  is  entered,  and  deliver  them 
'to  the  parties  entitled  thereto' 

The  better  practice  is  to  have  the  mortgage  or  trust 
deed  executed  in  duplicate,  thereby  saving  the  expense 
of  the  certified  copy  described  in  §  63. 

'Certified  copies.]  §  63.  When  an  instrument  is  not  exe- 
'cuted  in  a  sufficient  number  of  parts  for  the  convenience  of 
'the  parties,  the  registrar  may  make  and  deliver  to  each  of 
'the  parties  entitled  thereto  certified  copies  of  the  instru- 
'ment  filed  in  his  office  with  the  endorsements  thereon, 
'marking  the  same  "mortgagee's  certified  copy,"  "lessor's 
'certified  copy,"  or  as  the  case  may  be,  and  shall  note  upon 
'the  register  the  fact  of  issuing  such  copies.  Such  certified 
'copies  shall  have  the  same  force  and  effect,  and  be  treated 
'as  duplicates.' 

'Assignment — how  effected — copy.]  §  64.  The  holder  of 
'any  charge  upon  registered  land  desiring  to  transfer  the 
'same  or  any  part  thereof,  may  execute  an  assignment  of 
'the  whole  or  any  part  thereof,  and  upon  such  assignment 
'being  filed  in  the  office  of  the  registrar,  and  the  production 
'of  the  duplicate  or  certified  copy  of  the  instrument  creating 
'the  charge  held  by  the  assignor,  the  registrar  shall  enter 
'in  the  register  opposite  the  charge  a  memorial  of  such 
'transfer,  with  a  reference  to  the  assignment  by  its  file 
'number;  he  shall  also  note  upon  the  instrument  on  file  in 
'his  office  intended  to  be  transferred  and  upon  the  duplicate 
'or  certified  copy  thereof  produced,  the  volume  and  folium 
'where  the  memorial  is  entered,  with  the  date  of  the  entry. 
'The  transferee  shall  be  entitled  to  have  a  certified  copy  of 
'the  instrument  of  transfer,  with  the  endorsement  thereon, 


THE  ILLINOIS  TORRENS  LAW.  49 

'and  in  case  of  the  transfer  of  the  entire  charge,  the  dupli- 
'cate  or  certified  copy  of  the  instrument  creating  the 
'charge.' 

'Release,  discharge  or  surrender  of  a  charge.]  §  65.  A 
'release,  discharge  or  surrender  of  a  charge  or  any  part 
'thereof,  or  of  any  part  of  the  land  charged,  may  be  effected 
'in  the  same  way  as  above  provided  in  the  case  of  a  trans- 
'fer.  In  case  only  a  part  of  the  charge  or  of  the  land  is 
'intended  to  be  released,  discharged  or  surrendered,  the 
'entry  shall  be  made  accordingly,  but  when  the  whole  is 
'released,  discharged  or  surrendered  at  the  same  or  several 
'times,  the  registrar  shall  stamp  across  the  instrument  on 
'file,  and  the  memorial  thereof,  and  the  duplicate  or  cer- 
'tified  copy  produced,  the  word  "canceled."' 

Great  care  is  used  by  the  registrar  to  avoid  improper 
satisfaction  of  mortgage  liens.  He  requires  presenta- 
tion of  the  cancelled  notes  and  a  properly  executed  and 
delivered  release  deed.  In  all  cases  where  possible, 
direct  communication  will  be  first  had  with  the  mort- 
gagee or  trustee,  and  the  registrar  will  be  satisfied  that 
the  mortgage  indebtedness  is  in  fact  fully  paid  before 
noting  its  discharge  upon  the  proper  certificate  of  title. 

'Charges  —  how  enforced — pendente  lite.]  §  66.  All 
'charges  upon  registered  land  or  any  estate  or  interest  in 
the  same  and  any  rights  thereunder  may  be  enforced  as 
'now  allowed  by  law,  and  all  laws  with  reference  to  the 
'foreclosure  and  release  or  satisfaction  of  mortgage  shall 
'apply  to  mortgages  upon  registered  lands,  or  any  estate  or 
'interest  therein  except  as  herein  otherwise  provided,  and 
'except  that  until  notice  of  the  pendency  of  any  suit  to 
'enforce  or  foreclose  such  charge  is  filed  in  the  registrar's 
'office,  and  a  memorial  thereof  entered  on  the  register,  the 
'pendency  of  such  suit  shall  not  be  notice  to  the  registrar 
'or  any  person  dealing  with  the  land  or  any  charge  thereon.' 

ATTORNEYS  IN  FACT. 

'Attorneys  in  fact.]     §  67.    Before  any  person  can  convey, 

4 


50  LAND  REGISTRATION  IN  ILLINOIS. 

'charge  or  otherwise  deal  with  any  registered  land  or  any 
'estate  or  interest  therein,  as  attorney  in  fact  for  another, 
'the  deed  or  instrument  empowering  him  so  to  act,  shall  be 
'filed  with  the  registrar,  and  a  memorial  thereof  entered 
'upon  nte  register  in  like  manner  as  in  the  case  of  a  charge. 
'If  the  attorney  shall  so  desire,  the  registrar  shall  deliver 
'to  him  a  certified  copy  of  the  power  of  attorney,  with  the 
'endorsements  thereon.  Revocation  of  a  power  may  be  reg- 
'istered  in  like  manner.' 

TRUSTS,  CONDITIONS  AND  LIMITATIONS. 

'Trusts,  conditions  and  limitations.]  §  68.  Whenever  a 
'deed  or  other  instrument  is  filed  in  the  registrar's  office  for 
'the  purpose  of  effecting  a  transfer  of  or  charge  upon  regis- 
'tered  lands,  or  any  estate  or  interest  in  the  same,  and  it 
'shall  appear  that  the  transfer  or  charge  is  to  be  upon  any 
'trust',  condition  or  limitation  expressed  in  such  deed  or 
'instrument,  the  registrar  shall,  unless  such  deed  or  instru- 
'ment  expressly  directs  to  the  contrary,  note  in  the  certifi- 
'cate,  and  the  duplicate  thereof,  or  memorial,  the  words 
'  "in  trust,"  or  "upon  condition,"  or  "with  limitations,"  as 
'the  case  may  be,  and  no  transfer  of  or  charge  upon,  or  deal- 
'ing  with  the  land,  estate  or  interest  shall  thereafter  be 
'registered,  unless  pursuant  to  the  order  of  some  court,  or 
'upon  the  written  opinion  of  two  examiners  that  such  trans- 
*fer,  charge  or  dealing  is  in  accordance  with  the  true  in- 
'tent  and  meaning  of  the  trust,  condition  or  limitation.' 

The  terms  and  conditions  of  the  trust  thus  remain 
operative  without  being  set  forth  at  length  in  the  cer- 
tificate of  title. 

Under  this  method  the  most  complicated  trust  or  set- 
tlement is  dealt  with  no  less  safety  and  certainty  than 
under  our  present  system. 

The  senior  solicitor  to  the  registrar  of  South  Aus- 
tralia in  his  report  to  the  House  of  Commons,1  in  this 
connection  has  said: 

"As  to  trusts:  It  appears  to  me  that  the  question  is, 

i  Registration  of  Title  (British  Colonies),  Blue  Book,  10  May,  1881. 


THE  ILLINOIS  TORRENS  LAW.  51 

Do  we  by  virtue  of  the  machinery  of  the  Real  Property 
Act  place  cestui  qui  trusts  of  lands  in  a  worse  position 
than  they  are  usually  placed  in  under  the  ordinary  sys- 
tem? In  my  opinion,  cestui  qui  trusts  of  land  uqder  the 
South  Australian  Real  Property  Act  are,  if  anything, 
in  a  better  position  *  *  *  No  litigation  has 
occurred  on  the  subject  of  trusts,  nor  has  any  complaint 
of  hardship  or  difficulty  been  made  to  this  office."1 

Similar  reports  are  returned  from  all  the  other  col- 
onies using  registration  of  title. 

The  English  and  German  acts  have  resulted  in  the 
same  safety  and  certainty  in  dealing  with  trusts  and 
settlements.2 

'Order  of  court  or  opinion  of  two  examiners — when  regis- 
tration conclusive  evidence.]  §  69.  Upon  the  filing  with  the 
'registrar  of  an  order  of  court  or  opinion  of  two  examiners, 
'as  provided  in  the  last  section,  and  in  the  latter  event  upon 
'the  registrar  also  being  satisfied  that  the  proposed  trans- 
fer, charge  or  other  dealing  is  in  accordance  with  the  true 
'intent  and  meaning  of  the  trust,  condition  or  limitation, 
'he  shall  proceed  to  register  the  same,  and  such  registra- 
tion shall  be  conclusive  evidence  in  favor  of  the  person 
'taking  such  transfer,  charge  or  other  right,  and  those 
'claiming  under  him,  in  good  faith  and  for  a  valuable  con- 
'sideration,  that  such  transfer,  charge  or  other  dealing  is  in 
'accordance  with  the  true  intent  and  meaning  of  the  trust, 
'condition  or  limitation.' 

TRANSMISSION. 

'Transmission.]  §  70.  Lands  and  any  estate  or  interest 
'therein  registered  pursuant  to  this  act,  shall,  upon  the 
'death  of  the  owner,  go  to  the  personal  representatives  of 
'the  deceased  in  like  manner  as  personal  estate,  whether 
'the  owner  dies  testate  or  intestate,  and  shall  be  subject  to 
'the  same  rules  of  administration,  as  if  the  same  were  per- 

1  Registration  of  Title   (British  Colonies),  Blue  Book,  10  May, 
1881. 

2  Registration  in  Middlesex;  C.  F.  Brickdale,  Lond.,  1892;  Prus- 
sian Legislation  on  Registration  of  Title;  Dr.  Fischer,  Berlin,  1892. 


52  LAND  REGISTRATION  IN  ILLINOIS. 

'sonalty,  except  as  otherwise  provided  in  this  act,  and 
'except  that  the  rule  of  division  shall  be  the  same  as  in  the 
'descent  of  real  property,  or  as  shall  be  provided  by  will.' 

Among  the  serious  defects  in  the  former  system  is 
that  there  are  so  many  facts  affecting  titles  that  never 
appear  of  record.  Among  these  are  the  facts  attending 
the  transmission  of  land  by  descent  The  fact  of  death 
of  the  owner,  who  are  the  next  of  kin,  whether  there 
is  a  widow  or  surviving  husband,  etc.,  are  all  facts 
which  the  law  makes  no  provision  for  getting  upon  the 
record  so  far  as  real  property  is  concerned,  and  which 
have  to  be  looked  up  again  and  again  as  often  as  the 
property  is  dealt  with.  The  act  furnishes  a  complete 
remedy  for  this  defect.  Kegistered  land,  instead  of 
descending  directly  to  the  next  of  kin,  goes  to  the 
executor  or  administrator  substantially  the  same  as 
personalty.  Proof  of  heirship  is  made  before  the  pro- 
bate court,  and  that  court  finds  the  respective  shares  of 
the  heirs  and  orders  the  executor  or  administrator  to 
make  conveyance  to  them  accordingly.  This  order 
being  filed  with  the  registrar,  and  the  certificate  of  title 
of  the  decedent  being  delivered  up,  the  transfers  are 
made  and  the  several  heirs  receive  certificates  of  title 
to  their  respective  shares.  All  questions  concerning 
heirship,  dower,  homestead,  rights  of  creditors,  etc.,  are 
thus  conclusively  settled  at  the  time  and  do  not  con- 
tinue for  years  afterwards  as  possible  defects  of  title  to 
be  looked  up  again  and  again  at  every  transfer. 

'Duty  of  personal  representative  of  deceased  owner — certifi- 
'cate.j  §  71.  Before  the  personal  representative  of  a 
'deceased  owner  of  registered  land  or  any  estate,  or  inter- 
'est  therein,  shall  deal  with  the  same,  he  shall  file  in  the 
'registrar's  office  a  certified  copy  of  his  letters  of  adminis- 
'tration,  or  if  there  is  a  will,  a  certified  copy  of  the  same  and 
'of  the  letters  testamentary,  or  of  administration,  with  the 
'will  annexed,  as  the  case  may  be,  and  shall  produce  the 


THE  ILLINOIS  TORRENS  LAW.  53 

'duplicate  certificate  of  title,  and  thereupon  the  registrar 
'shall  enter  upon  the  register  and  the  duplicate  certificate, 
'a,  memorial  thereof  with  a  reference  to  the  letters  or  will 
'and  letters  by  their  file  number,  and  the  date  of  filing  the 
'same.' 

'When  administrator  or  executor  may  sell.]  §  72.  Except 
'in  the  case  of  a  will  devising  the  lands  to  an  executor  to 
'his  own  use  or  upon  some  trust  or  giving  to  the  executor 
'power  to  sell,  no  sale  or  transfer  of  registered  land  shall 
'be  made  by  the  executor  or  by  an  administrator  in  the 
'course  of  administration  for  the  payment  of  debts  or  other- 
'wise,  except  in  pursuance  of  an  order  of  a  competent  court 
'obtained  as  provided  by  law.' 

'Executor's  or  administrator's  power,  mortgages,  leases  and 
other  personal  interests.]  §  73.  But,  a  memorial  of  the  will 
'and  letters  testamentary  or  of  letters  of  administration 
'being  first  entered  upon  the  register  as  herein  provided, 
'the  executor  or  administrator  may  deal  with  mortgages, 
'leases  and  other  personal  interests  in  or  upon  registered 
'land  as  if  he  were  the  registered  owner  thereof.' 

'Personal  interests — when  land  is  devised  to  executor  to  his 
'own  use  or  upon  trust,  etc.]  §  74.  Where  it  appears  by  the 
'will,  a  certified  copy  of  which  with  the  letters  testament- 
'ary  is  filed  as  provided  in  this  act,  that  registered  land  is 
'devised  to  the  executor  to  his  own  use,  or  upon  some  trust, 
'the  executor  may  have  the  land  transferred  to  himself 
'upon  the  register  in  like  manner  and  subject  to  like  terms 
'and  conditions  and  with  like  rights  as  in  the  case  of  a 
'transfer  pursuant  to  deed  filed  in  the  registrar's  office.' 

'When  will  empowers  executor  to  sell,  convey,  etc.]  §  75 
'When  the  will  of  a  deceased  owner  of  registered  land,  or 
'any  estate  or  interest  therein,  empowers  the  executor  to 
'sell,  convey,  incumber,  charge  or  otherwise  deal  with  the 
'land  it  shall  not  be  necessary  for  such  executor  to  be 
'registered  as  the  owner,  but  a  certified  copy  of  the  will  and 
'letters  testamentary  being  filed  as  provided  in  this  act, 
'such  executor  may  sell,  convey,  incumber,  charge  or  other- 
'wise  deal  with  the  land  pursuant  to  the  power  in  like  man- 


54  LAND  REGISTRATION  IN  ILLINOIS. 

'ner  as  if  he  were  the  registered  owner,  subject  to  the  like 
'conditions  as  to  the  trust,  limitations  and  conditions 
'expressed  in  the  will,  as  in  the  case  of  trusts,  limitations 
'and  conditions  expressed  in  a  deed.' 

'Proof  of  heirship — conclusive  evidence.]  §  76.  Before 
'making  distribution  of  undevised  registered  land  the  exec- 
'utor  or  administrator  shall  file  in  the  registrar's  office  a 
'certified  copy  of  the  proof  of  heirship  made  in  the  probate 
'or  county  court,  as  the  case  may  be,  which  shall  be  conclu- 
'sive  evidence  in  favor  of  all  persons  thereafter  dealing 
'with  the  land  that  the  persons  therein  named  as  the  only 
'heirs  at  law  of  the  deceased  owner  as  [are]  such  heirs.' 

'Court  of  probate  may  order  registered  land  to  be  sold  by 
'executor.]  §  77.  The  court  of  probate  may,  for  the  pur- 
'pose  of  distribution  of  the  estate,  order  registered  land,  or 
'any  estate  or  interest  therein,  to  be  sold  by  the  executor 
'or  administrator,  and  upon  the  filing  of  a  certified  copy  of 
'the  order  of  sale  and  order  of  confirmation  of  the  sale,  and 
'the  deeds  in  pursuance  of  the  same,  in  the  registrar's  office, 
'a  transfer  of  the  land,  estate  or  interest  to  the  purchaser 
'may  be  made  upon  the  register,  as,  in  the  case  of  other 
'sales,  by  deed.' 

'Executors  or  administrators  may  be  ordered  to  make  over 
'registered  land  before  final  distribution,  etc.]  §  78.  When- 
'ever,  after  the  expiration  of  the  time  fixed  for  the  adjust- 
'ment  of  claims  against  the  estate  of  the  deceased,  and  after 
'proof  of  heirship,  it  shall  be  made  to  appear  to  the  court 
'of  probate  that  the  estate  will  justify  it,  the  court  may 
'direct  the  executor  or  administrator  to  make  over  and 
'transfer  to  the  devisees  or  heirs,  or  some  of  them,  in  antici- 
'pation  of  the  final  distribution,  a  portion  or  the  whole  of 
'the  registered  lands  to  which  they  might  be  entitled  on 
'final  distribution.  And  upon  the  filing  of  a  certified  copy 
'of  such  order  in  the  registrar's  office,  the  executor  or 
'administrator  may  cause  such  transfer  to  be  made  upon 
'the  register  in  like  manner  as  in  case  of  a  sale.  The  land 
'so  transferred  shall  be  held  free  from  all  liens  or  claims 
'against  the  estate.  In  the  proceedings  to  procure  such 


THE  ILLINOIS  TORRBNS  LAW.  55 

'direction  such  notice  shall  be  given  as  the  court  of  probate 
'may  direct' 

'Final  distribution.]  §  79.  For  the  purpose  of  final  dis- 
tribution the  court  of  probate  may  determine  the  right  of 
'all  persons  in  registered  lands,  or  any  estate  or  interest 
'therein  of  the  deceased,  declare  and  enforce  the  rights  of 
'devisees,  heirs,  persons  entitled  to  dower  and  homestead, 
'and  others,  assign  dower  and  homestead,  and  make  parti- 
'tion  and  distribution  according  to  the  rights  of  the  parties. 
'The  court  may  give  direction  to  the  executor  or  adminis- 
'trator  as  to  the  transfer  of  registered  lands,  and  any  estate 
'or  interest  therein  to  the  devisees  or  heirs,  and  may  direct 
'the  transfer  to  be. to  several  devisees  or  heirs,  or  tenants 
'in  common,  or  otherwise,  as  shall  appear  to  the  court  to 
'be  most  convenient,  consistently  with  the  rights  of  the 
'parties,  or  as  the  parties  interested  may  agree.' 
DEALINGS  OF  ASSIGNEES,  RECEIVERS,  MASTERS,  ETC. 

'Dealings  of  assignees,  receivers,  masters,  etc.]  §  80.  Before 
'an  assignee  for  the  benefit  of  creditors,  receiver,  master  in 
'chancery,  special  commissioner,  or  other  person  appointed 
'by  court  shall  deal  with  or  transfer  registered  land  or  any 
'estate  or  interest  therein,  he  shall  file  in  the  registrar's 
'office  a  certified  copy  of  an  order  of  the  court  showing  that 
'such  assignee,  receiver,  master  in  chancery,  special  com- 
'missioner,  or  other  person,  is  authorized  to  deal  with  or 
'transfer  such  land,  estate  or  interest,  and  if  it  is  in  the 
'power  of  such  person  he  shall  present  to  the  registrar  the 
'duplicate  certificate  of  title;  and  thereupon  the  registrar 
'shall  enter  upon  the  register,  and  the  duplicate  certificate, 
'if  presented,  a  memorial  thereof,  with  a  reference  to  such 
'order  by  its  file  number.  In  the  case  of  a  deed  of  the  land  to 
'the  assignee  or  receiver,  the  same  shall  be  filed  in  the 
'registrar's  office  as  in  other  cases.' 

'When  memorial  entered.]  §  81.  Such  memorial  having 
'been  entered,  the  assignee,  receiver,  master  in  chancery, 
'special  commissioner,  or  other  person,  may,  subject  to  the 
'direction  of  the  court,  deal  with  or  transfer  such  land  as 
'if  he  were  the  registered  owner.' 


56  LAND  REGISTRATION  IN  ILLINOIS. 

TAX    SALES. 

'Tax  sales.]  §  82.  The  holder  of  any  certificate  of  sale 
'of  registered  land  or  any  estate,  or  interest  therein  for 
'any  tax,  assessment  or  imposition  shall,  within  three 
'months  after  the  date  of  sale,  present  the  same  or  a  sworn 
'copy  thereof  to  the  registrar,  who  shall  thereupon  enter 
'on  the  register  of  the  land  a  memorial  thereof,  stating  the 
'day  of  sale  and  the  date  of  presentation,  and  shall  also 
'note  upon  the  certificate  of  sale  the  date  of  presentation 
'and  the  book  and  page  of  the  register,  where  the  memorial 
'is  entered.  The  holder  of  such  certificate  shall  also  within 
'the  same  time  mail  to  each  of  the  persons  who  appear  by 
'the  register  to  have  any  interest  in  the  land  a  notice  of 
'the  registration  of  such  certificate.  Unless  such  certificate 
'is  presented  and  registered,  and  notice  given  as  herein 
'provided  within  the  time  above  mentioned,  the  land  shall 
'be  forever  released  from  the  effect  of  such  sale,  and  no 
'deed  shall  be  issued  in  pursuance  of  such  certificate.  When: 
'it  shall  appear  by  the  affidavit  of  the  holder  of  the  eertifi- 
'cate  filed  with  the  registrar  that  the  place  of  residence  of 
'any  person  interested  in  the  land  can  not  upon  diligent 
'inquiry  be  ascertained,  the  requirement  of  this  section  as 
'to  mailing  notice  shall  not  apply  to  such  person.' 

'Tax  deed — effect  of — when  certificate  to  issue — notice — 
'insane  person,  etc.]  §  83.  A  tax  deed  of  registered  land, 
'or  an  estate  or  interest  therein  issued  in  pursuance  of  any 
'sale  for  tax  or  assessment  made  after  the  taking  effect  of 
'this  act,  shall  have  only  the  effect  of  an  agreement  for  the 
'transfer  of  the  title  upon  the  register,  and  may  be  filed 
'in  the  registrar's  office,  and  a  transfer  effected  as  in  case 
'of  other  deeds  of  conveyance. 

'But  no  certificate  of  title  shall  be  issued  thereon,  except 
'upon  the  surrender  and  cancellation  of  the  outstanding 
'certificate  of  title,  or  upon  the  order  of  court  as  provided 
'in  section  88  of  this  act,  and  no  such  order  shall  be  granted 
'except  upon  petition  to  the  court  ordering  the  sale  for  the 
'tax  or  assessment.  No  such  order  shall  be  granted  except 
'after  personal  service  of  notice  upon  all  persons  in  posses- 


THE  ILLINOIS  TORRENS  LAW.  57 

'sion  of  the  premises,  and  notice  either  by  personal  services 
for  by  publication,  as  provided  in  proceedings  in  chancery, 
'to  all  persons  appearing  upon  the  register  to  have  any 
'interest  in  the  premises.  And  in  case  any  minor  heir,  idiot, 
'or  insane  person  is  interested  in  the  premises,  no  such 
'order  shall  be  granted  until  the  expiration  of  the  time  to 
'redeem  the  premises  allowed  by  law  to  such  minor  heir, 
'idiot  or  insane  person  shall  have  expired.' 

LIS  PENDENS— JUDGMENTS— DECREES— NOTICE. 

'lis  pendens — notice.]  §  84.  No  suit,  bill  or  proceeding 
'at  law  or  in  equity  for  any  purpose  whatever  affecting 
'registered  land  or  any  estate  or  interest  therein,  or  any 
'charge  upon  the  same,  shall  be  deemed  to  be  lis  pendens 
'or  notice  to  any  person  dealing  with  the  same,  until  a 
'certificate  of  the  pendency  of  such  suit,  bill  or  proceeding, 
'under  the  hand  and  official  seal  of  the  clerk  of  the  court 
'in  which  it  is  pending,  shall  be  filed  with  the  registrar 
'and  a  memorial  thereof  entered  by  him  upon  the  register 
'of  the  last  certificate  of  the  title  to  be  affected.  This 
'section  shall  not  apply  to  attachment  proceedings  when 
'the  officer  making  the  levy  shall  file  his  certificate  of  levy 
'as  herein  provided.' 

JUDGMENTS,  ETC. 

'Judgments,  etc.]  §  85.  No  judgment  or  decree  or  order 
'of  any  court  shall  be  a  lien  upon  or  affect  registered  land 
'or  any  estate  or  interest  therein,  until  a  certificate,  under 
'the  hand  and  official  seal  of  the  clerk  of  the  court  in  which 
'the  same  is  of  record,  stating  the  date  and  purport  of  the 
'judgment,  decree  or  order,  or  a  certified  copy  of  such  judg- 
'ment,  decree  or  order,  is  filed  in  the  office  of  the  registrar 
'and  a  memorial  of  the  same  is  entered  upon  the  register 
'of  the  last  certificate  of  the  title  to  be  affected.' 

The  general  Hen  of  judgments,  in  so  far  as  they  affect 
registered  land,  is  abolished,  and  until  noted  upon  the 
proper  certificate  of  title  they  are  not  liens. 

By  this  section  is  also  avoided  the  confusion  and 
annoyance  arising  from  identity  or  similarity  of  name 


58  LAND  REGISTRATION  IN  ILLINOIS. 

of  the  judgment  debtor  and  the  land  owner.  The 
requirement  that  his  judgment  be  noted  upon  the 
proper  certificate  of  title  is  laid  upon  the  judgment 
creditor.  Should  he  cause  his  judgment  to  be  noted 
upon  the  wrong  certificate  of  title,  the  holder  of  the 
latter  is  given  ample  and  expeditious  remedy  by  §  93. 

ATTACHMENT,  EXECUTION,  ETC.— LIENS. 

'Attachment,  execution,  etc.  —  liens.]  §  86.  Whenever 
'registered  land  is  levied  upon  by  virtue  of  any  writ  of 
'attachment,  execution  or  other  process,  it  shall  be  the  duty 
'of  the  officer  making  such  levy  to  file  with  the  registrar 
'a  certificate  of  the  fact  of  such  levy,  a  memorial  of  which 
'shall  be  entered  upon  the  register,  and  no  lien  shall  arise 
'by  reason  of  such  levy  until  the  filing  of  such  certificate 
'and  the  entry  in  the  register  of  such  memorial,  any  notice 
'thereof,  actual  or  constructive,  to  the  contrary  notwith- 
standing.' 

'When  registered  land  sold  under  execution,  etc. — sheriff, 
'etc. — to  file  certificate  with  registrar — memorial — certificate 
'of  redemption.]  §  87.  When  any  registered  land  is  sold 
'by  virtue  of  any  execution,  judgment  or  decree,  it  shall  be 
'the  duty  of  the  sheriff,  master  in  chancery,  or  other  officer 
'making  such  sale,  instead  of  filing  a  duplicate  of  his 
'certificate  of  such  sale  to  be  recorded  in  the  recorder's 
'office,  to  file  the  same  with  the  registrar,  and  upon  its  being 
'so  filed  the  registrar  shall  enter  a  memorial  thereof  upon 
'a  register  in  the  same  manner  as  he  is  required  to  enter 
'other  memorials.  Certificates  of  redemption  shall  be  filed 
'and  noted  upon  the  register  in  like  manner.' 

'Sale  of  registered  land  by  sheriff,  etc. — surrender  of  out- 
'standing  certificate  of  title.]  §  88.  In  case  of  sale  of  regis- 
'tered  land  by  a  sheriff,  master  in  chancery,  receiver, 
'special  commissioner  or  other  officer  OP  person  pursuant 
'to  a  judgment,  decree  or  order  of  court,  no  transfer  of  the 
'title  shall  be  made  by  the  registrar,  except  upon  the  sur- 
'render  and  cancellation  of  the  outstanding  certificate  of 
'title,  or  upon  an  order  of  the  court  filed  with  the  registrar 


THE  ILLINOIS  TORRENS  LAW.  59 

'directing  such,  transfer,  and  in  case  of  the  transfer  of  the 
'fee,  directing  the  cancellation  of  the  outstanding  certifi- 
'cate,  and  granting  to  the  transferee  a  writ  of  assistance 
'to  put  him  in  possession  of  the  premises.' 

'Liens  of  mechanics  or  others — notice,  etc.,  to  be  filed  in  the 
'registrar's  office.]  §  89.  In  all  cases  where,  by  any  law  in 
'relation  to  the  liens  of  mechanics  or  others,  any  claim  or 
'notice  is  authorized  to  be  filed  in  any  court  or  office,  the 
'same,  when  it  relates  to  registered  land  or  any  interest 
'therein,  may  be  filed  in  the  registrar's  office,  and  being  so 
'filed,  a  memorial  thereof  shall  be  entered  by  the  registrar, 
'as  in  the  case  of  other  charges,  and  proceedings  to  enforce 
'the  lien  may  be  had,  as  provided  in  this  act,  creating  the 
'same.  Until  it  is  so  filed  and  registered,  no  such  lien  shall 
'be  deemed  to  have  been  created.' 

'When  lien  to  affect  the  title  of  registered  land.]  §  90.  No 
'statutory  or  other  lien  shall  be  deemed  to  affect  the  title 
'to  registered  land  until  after  a  memorial  thereof  is  entered 
'upon  the  register,  as  herein  provided.' 

This  extends  to  all  liens  the  requirement  of  notation 
upon  the  proper  certificate  of  title  before  validity  as 
a  lien  upon  registered  land.  The  area  of  search,  for  alt 
liens  is  thus  reduced  to  a  single  page  in  the  "Register 
of  Titles." 

'Certificate  of  clerk  that  suit,  etc.,  has  been  dismissed  to  be 
'filed  in  the  registrar's  office.]  §91.  The  certificate  of  the 
'clerk  of  the  court  in  which  any  suit,  bill  or  proceeding 
'shall  have  been  pending,  or  any  judgment  or  decree  is  of 
'record,  that  such  suit,  bill  or  proceeding  has  been  dis- 
'missed  or  otherwise  disposed  of,  or  the  judgment,  decree 
'or  order  has  been  satisfied,  released,  reversed  or  overruled, 
'or  of  any  sheriff  or  other  officer  that  the  levy  of  an  execu- 
'tion,  attachment  or  other  process  certified  by  him,  has  been 
'released,  discharged  or  otherwise  disposed  of,  being  filed  in 
'the  registrar's  office  and  noted  upon  the  register,  shall  be 
'sufficient  to  authorize  the  registrar  to  cancel  or  otherwise 


60  LAND  REGISTRATION  IN  ILLINOIS. 

'treat  the  memorial  of  such  suit,  bill,  proceeding,  judgment, 
'decree  or  levy,  according  to  the  purport  of  such  certificate. 

MEMORIAL  OF  ADVERSE  CLAIM,  ETC. 

'Memorial  of  adverse  claim,  etc.]  §  92.  Any  person 
'making  any  claim  to  or  asserting  any  lien  upon  registered 
'land  not  existing  at  the  initial  registry  of  the  same  and 
'not  shown  upon  the  register,  or  adverse  to  the  title  of  the 
'registered  owner,  and  no  other  provision  herein  made  for 
'asserting  the  same  in  the  registrar's  office,  may  make  affi- 
'davit  thereof  setting  forth  his  interest,  right,  title,  lien  or 
'demand,  and  how  and  under  whom  derived  and  the  char- 
'acter  and  nature  thereof.  The  affidavit  shall  state  his 
'place  of  residence  and  also  his  place  of  business,  if  he  has 
'one,  and  designate  a  place  at  which  all  notices  relating 
'thereto  may  be  served.  Upon  the  filing  of  such  affidavit  in 
'the  office  of  the  registrar,  the  latter  shall  enter  a  memorial 
'thereof,  as  in  the  case  of  a  charge.' 

PROCEEDINGS  IN  CHANCERY. 

'Proceedings  in  chancery.]  §  93.  Whenever  any  person 
'interested  in  registered  land  or  any  estate  or  interest  there- 
'in  or  charge  upon  the  same,  shall  be  entitled  to  have  any 
'certificate  of  title,  memorial  or  other  entry  upon  the  regis- 
'ter  canceled,  removed  or  modified,  and  the  registrar  or  per- 
'son  whose  duty  it  shall  be  to  cancel,  remove  or  modify  the 
'same  or  do  any  act  towards  the  same,  shall,  upon  request, 
'fail  or  refuse  so  to  do,  or  is  absent  from  the  county,  or  can 
'not  be  found,  or  for  any  reason  such  request  can  not  be 
'made  upon  him,  a  court  of  chancery  may,  upon  petition  by 
'the  person  interested,  make  such  orders  as  may  be  accord- 
'ing  to  equity  in  the  premises,  and  upon  a  certified  copy  of 
'such  order  being  filed  in  the  registrar's  office,  the  registrar 
'shall  make  such  cancellation,  memorial  or  modification  as 
'shall  be  decreed  in  such  order.' 

'Persons  feeling  aggrieved  by  action  of  registrar  may  file  a 
'bill,  etc.]  §  94.  Any  person  feeling  himself  aggrieved  by 
'the  action  of  the  registrar  or  by  his  refusal  to  act  in  any 
'matter  pertaining  to  the  first  registration  of  land  or  any 


THE  ILLINOIS  TORRENS  LAW.  61 

'estate  or  interest  therein,  after  the  first  registration  or  any 
'transfer  of  or  charge  upon  the  same,  the  filing,  or  neglect 
'or  refusal  to  file  any  instrument,  or  to  enter  or  cancel  any 
'memorial  or  notation,  or  to  do  any  other  thing  required  of 
'him  by  this  act,  may  file  his  bill  or  petition  in  equity  in  any 
'court  of  competent  jurisdiction,  making  the  registrar  and 
'other  persons  whose  interest  may  be  affected,  parties 
'defendant,  and  the  court  may  proceed  therein  as  in  other 
'cases  in  equity  and  make  such  order  or  decree  as  shall  be 
'according  to  equity  in  the  premises  and  purport  of  this  act.' 
'Nothing  in  two  sections  to  remove  bar — limitations — bona 
'fide  purchasers.]  §  95.  Nothing  contained  in  either  of  the 
'two  preceding  sections  shall  be  so  construed  as  to  remove 
'the  bar  of  any  order  or  decree,  or  extend  the  time  of  limita- 
'tion  hereinbefore  provided,  nor  to  affect  the  right  of  any 
'bona  fide  purchaser  or  incumbrancer  without  notice  filed 
'with  the  registrar  and  noted  as  in  the  case  of  other  memor- 
ials.' 

No  limit  of  time  is  prescribed  within  which  the 
appeal  to  the  court,  authorized  in  §§  93  and  94,  may  be 
made,  except  as  against  a  bona  fide  purchaser  or 
incumbrancer.  The  title  of  such  purchaser  or  incum- 
brancer cannot  be  upset. 

'Court  in  addition  to  costs  may  award  damages,  including 
'attorney's  fees.]  §  96.  The  court  may,  in  any  case  contem- 
'plated  in  sections  93  and  94,  in  addition  to  the  costs,  award 
'such  damages,  including  reasonable  attorney's  fees,  as  it 
'shall  deem  just  in  the  premises.' 

INDICES. 

'Indices.]  §  97.  The  registrar  shall  keep  tract  indices, 
'in  which  shall  be  entered  the  lands  registered  in  the  numer- 
'ical  order  of  the  townships,  ranges,  sections,  and  in  cases 
'of  subdivisions,  the  blocks  and  lots  therein,  and  the  name 
'of  the  owners  with  a  reference  to  the  volume  and  folium 
'of  the  register  in  which  the  lands  are  registered.' 

'Individual  indices — what  to  contain.]     §  98.     He  shall  also 


62  LAND  REGISTRATION  IN  ILLINOIS. 

'keep  alphabetical  indices,  in  which  shall  be  entered  in 
'alphabetical  order  the  names  of  all  registered  owners  and 
'all  other  persons  interested  in  or  holding  charges  upon 
'registered  land,  with  a  reference  to  the  volume  and  folium 
'of  the  register  in  which  the  land  is  registered.' 
INDEMNITY  FUND. 

'Indemnity  fund.]  §  99.  Upon  the  first  bringing  of  land 
'under  the  operation  of  this  act  consequent  upon  the  appli- 
'cation  of  the  owner,  as  hereinbefore  provided,  and  upon 
'the  issuance  of  a  certificate  of  title  pursuant  to  section 
'eighty-three  (83)  and  also  upon  the  entry  of  a  new  certifi- 
'cate  showing  some  one  either  by  devise  or  by  descent  as 
'registered  owner,  there  shall  be  paid  to  the  registrar  one- 
'tenth  of  one  per  cent  of  the  value  of  such  land.  Such  value 
'shall  be  ascertained  by  the  registrar.' 

'How  said  fund  should  be  invested  and  how  paid  out.]  §  100. 
'All  sums  of  money  received  as  aforesaid  shall  be  paid  by 
'the  registrar  to  the  county  treasurer  of  the  county  in  which 
'the  land  is  situated,  for  the  purpose  of  an  indemnity  fund 
'under  the  terms  of  this  act.  It  shall  be  the  duty  of  the 
'treasurer  to  invest  all  of  said  funds,  principal  and  income, 
'in  his  hands  from  time  to  time  if  not  immediately  required 
'for  payments  of  indemnities,  in  the  manner  herein  pro- 
'vided,  and  report  annually  to  the  County  Court  the  condi- 
'tion  and  income  thereof.  All  investments  of  the  fund  or 
'any  part  thereof  shall  be  made  with  the  approval  of  said 
'court  by  order  entered  of  record.  The  said  fund  shall  be 
'invested  only  in  the  bonds  or  securities  of  the  United 
'States,  or  of  this  State,  or  counties,  or  other  municipalities 
'of  this  State.' 

PROCEEDINGS  TO  RECOVER  COMPENSATION  FOR  LOSS  OR 

DAMAGE. 

'Proceedings  to  recover  compensation  for  loss  or  damage.] 
'§  101.  Any  person  sustaining  loss  or  damage  through  any 
'omission,  mistake  or  misfeasance  of  the  registrar,  or  of  any 
'examiner  of  titles,  or  of  any  deputy  or  clerk  of  the  regis- 
'trar  in  the  performance  of  their  respective  duties  under  the 
'provisions  of  this  act,  and  any  personally  wrongfully 


THE  ILLINOIS  TORRENS  LAW.  63 

'deprived  of  any  land  or  any  interest  therein,  through  the 
'bringing  of  the  same  under  the  provisions  of  this  act,  or 
'by  the  registration  of  any  other  person  as  owner  of  such 
'land,  or  by  any  mistake,  omission  or  misdescription  in  any 
'certificate,  or  in  any  entry  or  memorandum  in  the  register 
'book,  or  by  any  cancellation,  and  who  by  the  provisions  of 
'this  act  is  barred  or  in  any  way  precluded  from  bringing 
'an  action  for  the  recovery  of  such  land  or  interest  therein, 
'or  claim  upon  the  same,  may  bring  an  action  at  law  against 
'the  treasurer  of  the  county  in  which  said  land  is  situated 
'for  the  recovery  of  damages  to  be  paid  out  of  the  indemnity 
'fund.' 

'Action  to  recover  for  loss  or  damage — who  to  be  made 
'defendants — duty  of  state's  attorney.]  §  102.  If  such  action 
'before  recovery  for  loss  or  damage  arising  only  through  any 
'omission,  mistake  or  misfeasance  of  the  registrar,  or  of 
'any  examiner  of  titles,  or  any  deputy  or  clerk  of  the  regis- 
'trar  in  the  performance  of  their  respective  duties  under 
'the  provisions  of  this  act,  then  the  county  treasurer  shall 
'be  the  sole  defendant  to  such  action.  But  if  such  action  be 
'brought  for  loss  or  damage  arising  only  through  the  fraud 
'or  wrongful  act  of  some  person  or  persons  other  than  the 
'registrar,  his  examiners  of  titles,  deputies  and  clerks,  or 
'arising  jointly  through  the  fraud  or  wrongful  act  of  such 
'person  or  persons  and  the  omission,  mistake  or  misfeas- 
'ance  of  the  registrar,  his  examiners  of  titles,  deputies  or 
'clerks,  then  such  action  shall  be  brought  against  both  the 
'county  treasurer  and  such  person  or  persons  aforesaid.  In 
'all  such  actions  where  there  are  defendants  other  than  the 
'county  treasurer  and  damages  shall  have  been  recovered, 
'no  final  judgment  shall  be  entered  against  the  county  treas- 
'urer  until  execution  against  the  other  defendants  shall  be 
'returned  unsatisfied  in  whole  or  in  part,  and  the  officer 
'returning  the  execution  shall  certify  that  the  amount  still 
'due  upon  the  execution  can  not  be  collected  except  by  appli- 
'cation  to  the  indemnity  fund.  Thereupon,  the  court,  being 
'satisfied  as  to  the  truth  of  such  return,  may  upon  proper 
'showing,  order  the  amount  of  the  execution  and  costs,  or 
'so  much  thereof  as  remains  unpaid,  to  be  paid  by  the 


64  LAND  REGISTRATION  IN  ILLINOIS. 

'county  treasurer  out  of  the  indemnity  fund.  It  shall  be 
'the  duty  of  the  State's  Attorney  or  the  county  attorney,  if 
'there  be  one  of  the  county,  to  appear  and  defend  all  such 
'suits.' 

TIME  OF  PROCEEDING  LIMITED. 

'Time  of  proceeding  limited.]  §  103.  No  action  or  pro- 
'ceeding  for  compensation  for  or  by  reason  of  any  depriva- 
'tions,  loss  or  damage  occasioned  or  sustained  as  provided 
'in  this  act,  shall  be  made,  brought  or  taken,  except  within 
'the'  period  of  ten  years  from  the  time  when  the  right  to 
'bring  or  take  such  action  or  proceeding  first  accrued. 
'Except  that  if  at  the  time  when  such  right  of  action  first 
'accrues,  the  person  entitled  to  bring  such  action  or  take 
'such  proceeding  is  within  the  age  of  twenty-one  years,  or 
'if  a  female,  of  the  age  of  eighteen  years,  or  insane,  impris- 
'oned  or  absent  from  the  United  States  in  the  service  of  the 
'United  States  or  of  this  State, such  person  or  anyone  claim- 
'ing  from,  by  or  under  him  or  her,  may  bring  the  action  or 
'take  the  proceeding  at  any  time  within  two  years  after 
'such  disability  is  removed,  notwithstanding  the  time 
'before  limited  in  that  behalf  has  expired.' 

PENALTIES. 

'Penalties.]  §  104.  Whoever  fraudulently  procures,  or 
'assists  in  fraudulently  procuring,  or  is  a  privy  to  the  fraud- 
'ulent  procurement  of  any  certificate  of  title  or  instrument, 
'or  of  any  entry  in  the  register  or  other  book  kept  in  the 
'registrar's  office,  or  of  any  erasure  or  alteration  in  any 
'entry  in  any  said  book,  or  in  any  instrument  authorized  by 
'this  act,  or  knowingly  defrauds  or  is  privy  to  defrauding 
'any  person  by  means  of  a  false  or  fraudulent  instrument, 
'certificate,  statement  or  affidavit,  affecting  registered  land, 
'shall  be  guilty  of  a  misdemeanor  and  fined  not  exceeding 
'five  thousand  dollars,  and  imprisoned  not  exceeding  five 
'years,  or  either  or  both,  in  the  discretion  of  the  court.' 

'Whoever  forges  or  procures  to  be  forged,  etc.,  the  seal  of 
'the  registrar,  etc.]  §  105.  (1.)  Whoever  forges,  or  procures 
'to  be  forged,  or  assists  in  forging  the  seal  of  the  registrar, 
'or  the  name,  signature,  or  handwriting  of  any  officer  of  the 


THE  ILLINOIS  TORRENS  LAW.  65 

'registry  office,  in  case  where  such  officer  is  expressly  or 
'impliedly  authorized  to  affix  his  signature;  or 

'(2.)  Fraudulently  stamps,  or  procures  to  be  stamped 
'or  assists  in  stamping  any  document  with  any  forged  seal 
'of  said  registrar;  or 

'(3.)  Forges,  or  procures  to  be  forged,  or  assists  in  forg- 
'ing  the  name,  signature,  or  handwriting  of  any  person 
'whomsoever  to  any  instrument  which  is  expressly  or  impli- 
'edly  authorized  to  be  signed  by  such  person;  or 

'(4.)  Uses  any  document  upon  which  any  impression,  or 
'part  of  the  impression,  of  any  seal  of  said  registrar  has 
'been  forged,  knowing  the  same  to  have  been  forged,  or  any 
'document  the  signature  to  which  has  been  forged,  knowing 
'the  same  to  have  been  forged,  or  swears  falsely  concern- 
'ing  any  matter  or  proceeding  made  or  done  in  pursuance 
'of  this  act,  shall  be  imprisoned  in  the  penitentiary  not 
'exceeding  ten  years,  or  fined  not  exceeding  one  thousand 
'dollars,  or  both  fined  and  imprisoned,  in  the  discretion 
'of  the  court.' 

'Conviction  not  to  affect  the  remedy.]  §  106.  No  proceeding 
'or  conviction  for  any  act  hereby  [declared]  to  be  a  misde- 
'meanor  or  a  felony  shall  affect  any  remedy  which  any  per- 
'son  aggrieved  or  injured  by  such  act  may  be  entitled  to  at 
'law  or  in  equity  against  the  person  who  has  committed 
'such  act  or  against  his  estate.' 

DOCKET  FEES. 

'Docket  fees.]  §  107.,  On  the  filing  of  any  petition  the 
'petitioner  shall  pay  to  the  clerk  of  the  court  the  sum  of 
'$5.00,  which  shall  be  in  full  of  all  clerk's  fees  and  charges 
'in  such  proceeding  on  behalf  of  the  applicant.  Any  defend- 
'ant  on  entering  his  appearance  shall  pay  to  the  clerk  the 
'sum  of  |5.00,  which  shall  be  in  full  of  all  clerk's  fees  on 
'behalf  of  such  defendant.  When  any  number  of  defend- 
'ants  shall  enter  their  appearance  at  the  same  time,  or 
'before  default,  but  one  fee  shall  be  charged.' 
REGISTRAR'S  FEES. 

'Registrar's  fees.]  §  108.  The  fees  to  be  paid  to  the  regis- 
'trar  shall  be  as  follows: 


66  LAND  REGISTRATION  IN  ILLINOIS. 

'At  or  before  the  time  of  referring  the  application  for 
'initial  registration,  the  applicant  shall  advance  and  pay 
'to  the  registrar  the  sum  of  $15,  which  shall  be  in  full  of  all 
'services  of  the  registrar  and  examiners  up  to  the  granting 
'of  the  certificate  of  title.  In  proper  cases  the  court  may 
'direct  the  payment  of  such  further  fees  by  the  applicant 
'or  any  defendant  as  it  may  determine.  When  the  applica- 
'tion  includes  titles  derived  from  more  than  one  source,  an 
'additional  sum  of  $5  for  each  source  shall  be  advanced. 
'For  granting  certificate  of  title  upon  each  appli- 
cation and  registering  the  same $2  00 

'For  registering  each  transfer,  including  the  filing 
of  all  instruments  connected  therewith,  and  the 
issue  and  registration  of  the  new  certificate  of 

title 3  00 

'When  the  land  transferred  is  held  upon  any  trust 

condition  or  limitation,  an  additional  fee  of 5  00 

'For  entry  of  each  memorial  on  the  register,  includ- 
ing the  filing  of  all  instruments  and  papers  con- 
nected therewith  and  endorsements  upon  dupli- 
cate certificates 3  00 

'For  filing  copy  of  will  with  letters  testamentary, 
or  filing  copy  of  letter  of  administration  and 

entering  memorial  thereof 5.00 

'For  the  cancellation  of  each  memorial  or  charge. .  1.00 
'For  each  certificate  showing  condition  of  the  reg- 
ister   100 

'For  any  certified  copy  of  register  or  any  instrument 
'of  writing  on  file  in  his  office,  the  same  fees  now  allowed 
'by  law  to  recorders  of  deeds  for  like  services.' 

The  expense  of  bringing  land  under  the  system  may 
therefore  be  stated  as  follows: 

Clerk  of  court  on  filing  application.  .$  5 

Publication  notice 2 

Registrar  for  examination  of  title 15 

Registrar  on  issue  of  certificate  of  title    2 

Total  .  |24 


THE  ILLINOIS  TORRENS  LAW.  67 

If  there  be  defendants  upon  whom  summons  is  to  be 
served  there  is  to  be  added  a  sheriff's  fee  of  $1  for  each 
person  so  served.  As  stated  elsewhere  (p.  23)  this 
expense  is  avoided  where  the  defendants  consent  to 
the  registration. 

Should  oral  testimony  be  taken,  the  ordinary  sten- 
ographer's fees  for  attendance  and  transcript  are  also 
to  be  added. 

Each  applicant  for  first  registration,  in  addition, 
contributes  to  the  indemnity  fund  one-tenth  of  one  per 
cent  of  the  value  of  the  property,  or  f  1  on  each  $1000. 
(§  99).  This  fee  is  payable  only  upon  first  registration 
and  when  the  property  passes  by  descent  or  devise.  No 
fee  of  this  nature  is  due  upon  any  other  transfer  or 
dealing  with  the  registered  title. 

'Act — how  construed.]  §  109.  This  act  shall  be  construed 
'liberally  so  far  as  may  be  necessary  for  the  purpose  of 
'effecting  its  general  intent.' 

The  spirit  of  this  brief  but  important  section  is  being, 
without  exception,  well  observed  by  the  courts  of  rec- 
ord in  Cook  County. 

SUBMISSION  BY  COUNTIES. 

'Submission  to  vote  by  counties.]  §  110.  The  provisions  of 
'this  act  shall  not  apply  to  land  in  any  county  until  this  act 
'shall  have  been  adopted  by  a  vote  of  the  people  of  the 
'county  at  an  election  to  be  held  on  the  Tuesday  next  after 
'the  first  Monday  in  November  or  the  first  Tuesday  in  April 
'or  any  election  for  the  election  of  Judges  of  the  year  in 
'which  the  question  is  submitted. 

'The  question  may  be  submitted  in  the  following  man- 
'ner:  In  any  county  of  the  first  or  second  class,  as  the  same 
'are  classified  in  the  act  concerning  "fees  and  salaries,"  on 
'the  petition  of  not  less  than  one-half  of  the  legal  voters,  to 
'be  ascertained  by  the  vote  cast  at  the  last  preceding  elec- 
'tion  for  county  officers,  or  in  any  county  of  the  third  class 


68  LAND  REGISTRATION  IN  ILLINOIS. 

'upon  petition  of  not  less  than  twenty-five  hundred  (2,500) 
'legal  voters  praying  the  submission  of  the  question  of  the 
'adoption  of  this  act,  the  clerk  shall  give  notice  that  such 
'question  will  be  submitted  at  such  election  and  shall  cause 
'to  be  printed  at  the  top  of  the  ballots  to  be  used  for  said 
'election: 


For  the  Torrens  Land  Title  System  

Against  the  Torrens  Land  Title  System  

'The  votes  cast  upon  that  question  shall  be  counted,  can- 
'vassed  and  returned  as  in  the  case  of  the  election  of  county 
'officers.  If  the  majority  of  the  votes  cast  on  that  subject 
'shall  be  for  the  Torrens  land  title  system,  this  act  shall 
'thereafter  be  in  force  and  apply  to  lands  in  that  county.' 

'Emergency.]  §  111.  Whereas  an  emergency  exists, 
'therefore  this  Act  shall  take  effect  and  be  in  force  from 
'and  after  its  passage.' 

The  act,  in  so  far  as  it  has  come  before  them  in  the 
numerous  registration  cases  already  instituted,  has 
been  construed  liberally  by  the  judges  of  the  circuit 
and  superior  courts  of  Cook  County.  As  proper  cases 
shall  arise,  no  doubt,  many  of  its  provisions  will  receive 
from  our  Supreme  Court  more  examination  in  detail 
than  was  involved  in  People  v.  Simon.  Its  general 
features  are  free  from  constitutional  objection,  and 
additional  decisions  of  construction  and  practice  will 
doubtless  strengthen  its  efficacy  and  enlarge  its  use. 


CHAPTEK  IV. 

THE  OLD  AND  NEW  SYSTEMS  COMPARED. 

In  Illinois,  as  in  the  other  states,  land  titles  have 
been  dealt  with  under  the  system  known  as  registra- 
tion of  deeds.  Titles  pass  and  liens  are  created  by  the 
execution  and  delivery  of  sufficient  instruments  in  writ- 
ing, and  notice  of  these  to  subsequent  purchasers  is 
effected  by  the  record  of  such  instrument  in  the  office 
of  the  recorder  of  deeds.  Purchasers  are  also  to  search 
not  only  for  recorded  instruments,  but  for  judgments 
and  all  other  proceedings  in  any  of  the  courts  of  rec- 
ord which  may  affect  the  title.  On  a  transfer,  a  seller 
has  to  show  that  the  deed  to  him  is  the  last  link  in  an 
unbroken  chain  of  properly  drawn,  executed  and  rec- 
orded conveyances,  reaching  back  to  the  patent  from 
the  government,  a  period  of  usually  more  than  forty 
years.  This  search,  reduced  to  writing  and  known  as 
an  abstract  of  title,  can  be  made  only  by  those  skilled 
in  the  business.  It  contains  a  synopsis  of  every  con- 
veyance or  judicial  proceeding  affecting  the  land  and 
constitutes  a  complete  history  of  the  title.  On  each 
fresh  dealing  with  the  land,  this  abstract  of  title  is  con- 
tinued or  brought  down  to  date.  When  completed  the 
question  whether  the  title  so  set  forth  is  merchantable 
is  determinable  only  by  another  set  of  experts,  attor- 
neys skilled  in  examining  titles.  To  each  sale  and  mort- 
gage is  shackled  the  delay  and  expense  caused  by  the 
preparation  of  the  abstract  and  its  examination  by 
counsel.  Our  usual  abstract  of  title,  with  its  perpetual 
continuations,  is,  as  has  been  well  said,  but  another  edi- 
tion of  The  House  that  Jack  Built. 

This  system  is  found  unsatisfactory  in  the  following 
particulars : 

69 


70  LAND  REGISTRATION  IN  ILLINOIS. 

1.  The  expense.   The  cost  of  the  abstract,  either  in 
whole,  or  its  continuation,  is  necessary  in  each  trans- 
fer of  title.     To  this  must  be  added  the  cost  of  its 
examination  by  the  attorney  for  the  buyer.    In  Cook 
County  the  average  outlay  for  these  two  items  will  be 
probably  not  less  than  $25.  It  is  estimated  that  in  Illi- 
nois, the  annual  cost  of  abstracts  of  title  and  their 
examination  by  counsel,  is,  upwards  of  $10,000,000,  a 
sum  exceeding  every  20  years  the  entire  losses  by  the 
great  Chicago  fire.     The  land  owners  of  the  United 
States  pay  annually  for  abstracts  and  examining  law- 
yers' fees  a  sum  greater  than  the  yearly  interest  upon 
the  national  debt;  90  per  cent  of  such  expense  would  be 
saved  were  our  titles  under  the  Torrens  system. 

2.  The  delay.   Too  long  a  time  intervenes  between 
the  making  of  the  contract  of  sale  and  the  delivery  of 
the  deed.    Delays  consequent  upon  procuring  abstracts, 
their  examination  and  hunting  up  matters  that  do  not 
appear  of  record,  frequently  run  into  many  months. 

3.  The  insecurity.     The  purchaser  buys  at  his  peril. 
Errors  may  intervene  not  only  in  the  making  of  the 
abstract,  but  in  the  opinion  of  the  buyer's  attorney.  As 
against  all  such  errors  the  buyer  assumes  the  risk.  If 
the  defects  be  sufficiently  serious,  he  may  lose  the  land, 
and  then  may  recover  damages  from  his  grantor  under 
covenants  of  warranty.     Forged  deeds  are  as  easily 
recorded  as  genuine  ones.    The  forged  instrument  is 
taken  away  after  being  recorded,  and  from  the  abstract 
the  forgery  cannot  be  detected. 

4.  The  always  increasing  record  of  instruments  and 
matters  connected  with  the  title,  the  accumulation  of 
books  and  indexes  in  the  recorder's  office,  and  the 
lengthening  of  the  abstracts  of  title,  steadily  increase 
the  costs  of  transfers  and  the  risk  of  errors.   Since  Oc- 
tober, 1871,  there  have  accumulated  in  the  recorder's 
office  in  Cook  County  more  than  7,300  large  books  of 


THE  OLD  AND  NEW  SYSTEMS  COMPARED.  71 

records  of  deeds  and  mortgages  each  with  about  600 
pages.  At  the  present  rate  of  annual  increase,  within 
fifty  years  these  books  will  be  so  numerous  as  to 
require  a  large  building  for  their  keeping;  and  the  time 
and  expense  necessary  for  their  examination  will  very 
seriously  interfere  with  transfers. 

5.  These  defects  in  the  present  system  operate  as  a 
perpetual  tax  upon  the  holders  of  real  estate,  directly 
reduce  its  ease  of  convertibility  into  money,  and  thus 
lower  its  market  value.  This  burden  is  always  increas- 
ing. 

No  way  is  perceived  by  which  the  present  system  can 
be  retained,  and  these  defects  removed. 

Compared  with  our  present  system,  the  new  method 
of  transfer  by  registration  of  title  shows  the  following 
advantages: 

1.  Expense.     The  cost  of  an  initial  registration 
under  the  new  law  is  about  $25,  less  than  the  usual  cost 
of  a  single  transfer  under  the  present  system.  The  cost 
of  all  subsequent  transfers  is  greatly  reduced.     The 
entire  cost  of  an  ordinary  transfer  of  a  piece  of  regis- 
tered land  upon  a  sale  or  mortgage  is  $3.  These  charges, 
being  fixed,  are  ascertainable  in  advance,  so  both  seller 
and  buyer  know  beforehand  the  expense  of  carrying 
out  any  sale  or  transfer.  An  ordinary  transfer  or  mort- 
gage of  registered  land  is  a  transaction  so  simple  in  its 
nature  that  the  real  estate  broker,  or  even  the  parties 
themselves,  if  of  ordinary  business  intelligence,  may 
easily  carry  it  into  effect  and  without  the  aid  of  a  law- 
yer or  an  abstract  of  title.    Certificates,  of  title  thus 
become  available  for  short  time  loans,  30  or  60  days. 

2.  Time.     Kegistered  land  may  be  sold  or  mort- 
gaged and  the  money  safely  paid  over  within  an  hour 
or  two  after  the  making  of  the  verbal  contract.    The 
ownership  of  the  property,  and  whether  incumbered  or 
not,  is  shown  by  the  register  book  at  a  glance.  The  cer- 


72  LAND  REGISTRATION  IN  ILLINOIS. 

tiflcate  held  by  the  owner  shows  the  title  at  its  date, 
and  inspection  of  the  original  certificate  of  title  or  in 
lieu  thereof,  a  certificate  of  search  obtainable  from  the 
registrar,  will  show  all  subsequent  liens.  If  none 
appears,  the  money  is  paid  over,  the  certificate  of  title 
accompanied  by  the  deed  or  mortgage  is  delivered  to 
the  registrar,  the  proper  entry  made  upon  the  register, 
and  the  transfer  is  complete. 

3.  Security.  The  insecurity  of  the  present  system, 
is  largely  due  to  the  fact  that  since  upon  each  transfer 
the  title  must  be  searched  back  to  the  government, 
there  can  be  no  rest  in  such  searches,  and  error  in  their 
making  is  possible.  By  the  Torrens  system  the  title  is 
rested  or  quieted  by  law  at  each  transfer,  hence  upon  a 
proposed  transfer  no  search  back  of  the  preceding 
transfer  is  necessary.  Everything  necessary  to  know 
must  and  will  appear  upon  the  original  certificate  of 
title.  This  curtailing  of  the  search  greatly  reduces  risk 
of  error.  All  rights  of  the  buyer  to  recover  damages 
from  the  seller  for  any  imperfection  in  the  title,  if  war- 
ranted, are  fully  preserved.  If  any  purchaser,  through 
caution,  desires  to  satisfy  himself  as  to  the  correctness 
of  any  first  registration,  he  will  examine,  or  have  his 
counsel  examine,  the  abstracts  and  all  other  evidences 
of  title  upon  which  the  first  registration  was  effected. 
All  subsequent  transfers  or  dealings  with  the  regis- 
tered title  are  matters  of  public  record,  and  are  also 
open  to  examination  of  the  purchaser  if  he  so  desire. 
While  such  examinations  may  perhaps  be  made  with 
more  or  less  frequency  during  the  first  two  years  after 
registration,1  yet,  as  the  act  of  the  registrar  is  final, 
they  will  be  more  and  more  infrequent  until  they  cease 
altogether.  Under  the  present  system,  security  is 
dependent  upon  the  examination  made  by  the  owner. 

1  Only  three  have  been  made  since  the  system  has  been  in  use  in 
Cook  County. 


THE  OLD  AND  NEW  SYSTEMS  COMPARED.  73 

Under  the  new  system  all  such  security  is  retained; and, 
in  addition,  the  buyer  has  the  benefit  of  (1)  the  official 
examination,  made  by  the  registrar  before  the  title  is 
registered,  and  the  decree  entered  thereon  ordering 
registration,  which  can  be  attacked  only  within  the 
limitation  period;  (2)  the  collusiveness  given  by  law 
to  the  act  of  the  registrar  in  registering  all  subsequent 
transfers  or  dealings,  and  (3)  the  indemnity  fund  cre- 
ated especially  to  make  good  such  losses. 

4.  Shortening  of  the  records.     Under  the  present 
system,  all  deeds  and  mortgages  are  copied  at  length 
in  the  books  of  the  recorder  and  the  originals  returned 
to  the  owners.  There  is  no  copying  of  any  deed  or  mort- 
gage of  a  registered  title,  as  the  original  instruments 
are  retained  by  the  registrar.    The  area  of  search  is 
reduced  to  a  single  page. 

5.  A  safe  method  of  much  more  quickly  transferring 
titles  at  a  smaller  cost  increases  the  salable  value  of 
the  property. 

The  new  law  is  drawn  upon  the  theory  that  the  regis- 
ter book,  composed  as  it  is  of  the  certificates  of  title 
issued  by  the  registrar,  shall  be  an  authoritative  list  of 
the  persons  entitled  to  sell,  mortgage  or  deal  as  owners 
with  the  registered  land  situated  within  the  county.  It 
is  a  public  record  started  by  a  judicial  decree  and  kept 
by  an  official  under  bond  and  other  safeguards  ample 
to  ensure  its  accuracy;  and  if  its  authoritativeness  be 
sanctioned  by  law,  no  reason  is  perceived  why  all  can- 
not safely  rely  upon  such  accuracy.  It  has  been  most 
amply  demonstrated  in  other  countries  that  such  a  list 
can  be  both  authoritative  and  accurate. 

The  defects  in  our  present  system  of  transferring 
land,  have  brought  into  existence  in  Illinois  title  guar- 
anty or  title  insurance  companies.  Each  of  these  is  the 
owner  of  a  set  of  abstract  books.  Their  methods  pro- 
vide for  an  examination  of  the  title  sought  to  be  guar- 


74  LAND  REGISTRATION  IN  ILLINOIS. 

anteed  or  insured,  and  upon  those  selected  by  the 
company  as  free  from  risk  or  doubt,  policies  of  guaranty 
or  insurance,  are  issued  on  payment  of  a  premium  or 
rate  fixed  by  the  company.  This  premium  or  rate  in 
ordinary  cases,  when  there  are  no  defects  in  the  title,  is 
one  per  cent  of  the  value  of  the  land,  which  may  be 
insured  to  its  full  value  or  less.  The  policy  is  a  contract 
on  the  part  of  the  company  to  defend  all  suits  attack- 
ing the  title  brought  against  the  insured,  his  heirs  and 
devisees,  to  the  extent  of  the  sum  insured.  These  pol- 
icies do  not  protect  a  subsequent  purchaser  or  mort- 
gagee without  being  transferred  by  the  issue  of  a  new 
policy  upon  the  surrender  of  the  old  one  and  payment 
of  additional  charges  and  costs  fixed  by  the  company. 
They  do  not  cover  any  risk  by  reason  of  liens,  convey- 
ances or  other  instruments  of  writing,  not  of  record  at 
the  date  of  the  policy,  nor  by  the  rights  of  persons  in 
possession  not  shown  of  record.  The  policies  are 
secured  by  the  capital  of  the  company. 

The  method  in  use  by  these  guaranty  companies 
gives,  no  doubt,  additional  security  to  the  title  shown 
of  record,  but  their  policies  contain  many  conditions 
and  stipulations  greatly  limiting  the  value  of  the  guar- 
anty. These  are  necessary,  as  these  companies,  in  effect- 
ing such  guarantees,  have  not  the  aid  of  the  statutes  of 
limitations  and  rules  of  property  contained  in  a  regis- 
tration of  title  act,  which  are  so  essential  to  the  pro- 
tection of  the  title. 

These  guaranty  of  title  companies  do  not  overcome 
to  any  great  degree,  any  of  the  defects  or  disadvant- 
ages hereinbefore  shown  to  exist  in  the  present  system. 
They  do  not  materially  reduce  the  expense  of  transfer- 
ring or  dealing  with  the  title,  nor  the  necessary  time 
involved  therein.  While  they  give  the  owner  a  guar- 
antee which  he  lacked  before,  yet  it  is  only  against  mat- 
ters of  record,  and  is  limited  to  the  face  of  the  policy. 


THE  OLD  AND  NEW  SYSTEMS  COMPARED.  75 

They  do  nothing  toward  lessening  the  length  or  volume 
of  public  records,  and  guaranteed  titles  must  be  still 
dealt  with  through  the  medium  of  abstracts  prepared 
from  these  constantly  increasing  volumes  in  the 
recorder's  office.  The  guarantee  of  a  private  corpora- 
tion cannot  make  a  title  conclusive  or  indefeasible.  The 
issuance  of  such  a  policy  can  affect  no  adverse  rights 
whatsoever.  Neither  does  such  a  guaranty  in  any  way 
rest  or  quiet  a  title.  In  short,  the  guaranty  of  title  sys- 
tem, as  used  by  these  companies,  although  in  one  way 
giving  an  additional  security  of  title,  nevertheless  in  all 
other  respects  is  little  or  no  improvement  upon  the  old 
system.  Such  companies  seem  better  suited  for  large 
cities  and  are  not  likely  to  soon  be  able  to  aid  the  land- 
owner in  smaller  towns  or  country  districts.  These  and 
similar  objections  to  guaranty  of  title  companies  have 
been  found  to  exist  in  other  places  where  such  compa- 
nies have  been  longer  in  existence.  The  very  existence 
of  those  companies  is  a  strong  illustration  of  the 
necessity  for  a  radical  change  in  our  method  of  dealing 
with  titles  to  land. 

The  following  summary  of  benefits  of  the  system  of 
registration  of  titles,  made  by  Sir  Robert  Torrens,  has 
been  fully  justified  in  its  use: 

"1st.     It  has  substituted  security  for  insecurity." 

"2d.  It  has  reduced  the  cost  of  conveyances  from 
pounds  to  shillings,  and  the  time  occupied  from  months 
to  days." 

"3d.  It  has  exchanged  brevity  and  clearness  for 
obscurity  and  verbiage." 

"4th.  It  has  so  simplified  ordinary  dealings  that  he 
who  has  mastered  the  'three  Rs'  can  transact  his  own 
conveyancing." 

"5th.     It  affords  protection  against  fraud." 

"6th.  It  has  restored  to  their  just  value  many 
estates,  held  under  good  holding  titles,  but  depreciated 


76  LAND  REGISTRATION  IN  ILLINOIS. 

in  consequence  of  some  blur  or  technical  defect,  and 
has  barred  the  reoccurence  of  any  similar  faults." 

"7th.  It  has  largely  diminished  the  number  of  chan- 
cery suits,  by  removing  those  conditions  that  afford 
ground  for  them." 

We  may  add  an 

"8th.  As  to  registered  lands,  it  saves  the  rights  of 
infants  and  others  under  disability,  as  no  one  can  deal 
with  the  land  except  through  the  registrar's  office, 
where  all  rights  clearly  appear  and  must  be  respected." 


CHAPTER  V. 

THE   TORRENS  SYSTEM  ADAPTABLE  TO  AMERICAN 
CONSTITUTIONS. 

The  Torrens  method,  simply  stated,  provides  that, 
after  careful  examination  of  the  title,  once  for  all,  in 
any  of  the  different  manners  selected  to  regulate  the 
initial  registration,  all  rights  entitled  to  be  noticed 
by  those  dealing  with  the  land,  will  appear  of  record 
upon  one  page  of  the  register.  Any  claim,  however 
valid,  not  so  appearing  may  be  safely  disregarded. 
The  certificate  of  title  is  made  conclusive  evidence  in 
all  courts.  The  registered  title  is  thus  made  manifest, 
certain  and  conclusive.  Legislation,  with  such  object 
in  view,  is  entirely  within  the  prerogative  and  duty 
of  the  State.  As  held  in  Arndt  v.  Griggs1,  the  power 
of  the  State  to  regulate  tenure  of  land  within  its  limits 
and  the  mode  of  its  acquisition  and  transfer  cannot  be 
questioned. 

Two  questions,  of  vital  import,  confront  the  framers 
of  an  American  Torrens  act:  First,  How  to  secure  a 
valid  initial  registration ;  and,  second,  To  what  extent 
may  conclusiveness  be  given  to  the  act  of  the  registrar 
in  his  subsequent  dealings  with  the  registered  title. 

Considering  these  in  their  order,  it  is  to  be  noted 
that  in  Great  Britain  and  her  colonies,  as  well  as  in 
the  continental  countries,  now  using  the  Torrens  sys- 
tem2 there  exists  no  written  constitutional  provision 
interfering  with  giving  conclusive  effect  as  against  the 
world  to  the  first  certificate  of  title  issued  after  due 
examination  by  an  official  styled  a  registrar  who  is 
not  clothed  with  judicial  powers.  All  certificates  of 
title,  including  the  first,  are  therefore  made  conclu- 

1 134  U.  S.  316.  2  see  chapter  VII. 

77 


78  LAND  REGISTRATION  IN  ILLINOIS. 

sive,  and  one  injured  by  the  initial  registration  is  law- 
fully relegated  to  an  indemnity  fund.  It  is  obvious 
that,  under  the  provisions  of  the  federal  and  state  con- 
stitutions forbidding  deprivation  of  property  without 
due  process  of  law,  one  so  injured  is  entitled  to  his 
day  in  court,  and  without  such  due  process  of  law  or 
day  in  court  his  right  in  the  land  cannot  be  cut  off 
by  any  certificate  of  title  being  made  conclusive.  Two 
methods  have  been  adopted  in  order  to  avoid  such 
difficulty.  One  provides  that  the  first  certificate  of 
title  issued  by  the  registrar  not  himself  a  judicial 
officer,  should  be  conclusive  only  after  the  expiration 
of  some  statute  of  limitation.  Of  such  a  character  was 
the  first  act  adopted  in  Illinois  in  1895,  with  its  limita- 
tion period  of  five  years.  As  elsewhere  stated  this 
act  failed  to  meet  the  approval  of  the  supreme  court 
of  Illinois  in  People  v.  Chase,3  where  its  provisions 
were  found  in  effect  to  confer  judicial  power  upon  the 
registrar.  To  the  other  class  belong  the  present 
Illinois  law  and  the  somewhat  similar  acts  of  Massa- 
chusetts, Ohio  and  California.  In  each  of  these,  the 
initial  registration  is  made  the  subject  of  a  judicial 
inquiry  at  the  application  of  the  owner  in  a  court  of 
record  of  competent  jurisdiction.  The  Massachusetts 
act  was  held  valid  and  constitutional  by  the  supreme 
court  of  that  state  in  Tyler  v.  Judges,  etc.4  The 
case  was  subsequently  taken  by  writ  of  error  to  the 
supreme  court  of  the  United  States,  where  the  writ 
was  dismissed  for  want  of  jurisdiction,  it  not  appear- 
ing that  a  federal  question  was  involved.5  The  Ohio 
act,  in  the  case  of  State  v.  Guilbert,6  was  held  invalid 
upon  the  ground  that  its  proceedings  for  initial  regis- 
tration failed  to  provide  for  service  of  process  upon 
adverse  claimants,  residing  within  the  jurisdiction  of 

a  165  111.  526.  B  179  U.  S.  405. 

4  175  Mass.  71.  6  56  Ohio  St.  575. 


TORRENS   SYSTEM  AND  AMERICAN    CONSTITUTIONS.    79 

the  court  entertaining  the  proceeding.  The  California 
law  has  not  yet  been  construed  by  the  Supreme  Court 
of  that  State.  The  present  Illinois  law  was  sustained 
by  the  Supreme  Court  of  Illinois  in  the  case  of  People 
v.  Simon.7  These  decisions  establish  the  necessity 
in  any  American  registration  of  title  act  of  a  judicial 
proceeding  upon  which  to  base  the  first  certificate  of 
title.  After  the  entry  of  the  decree  in  such  proceeding 
adverse  claimants  not  parties  thereto  become  bound 
by  some  stated  statute  of  limitations.  This  in  Illinois 
is  two  years,  and  no  extension  is  granted  minors  or 
persons  under  any  disability.8 

We  now  consider  the  second  question,  as  to  the  con- 
clusivenes-s,  given  to  the  act  of  the  registrar  in  his 
subsequent  dealings  with  the  registered  title. 

The  Illinois,  as  well  as  the  other  American  acts, 
contains  the  following  provision  :9 

"The  bringing  of  land  under  this  act  shall  imply  an 
agreement  which  shall  run  with  the  land,  that  the 
same  shall  be  subject  to  the  terms  of  the  act  and  all 
amendments  and  alterations  thereof,  and  all  dealings 
with  land  or  any  estate  of  interest  therein,  after  the 
same  has  been  brought  under  this  act,  and  all  liens, 
encumbrances  and  charges  upon  the  same  subsequent 
to  the  first  registration  thereof,  shall  be  deemed  to 
be  subject  to  the  terms  of  this  act." 

This  provision,  while  probably  superfluous  as  not 
increasing  the  legal  effect  of  the  initial  registration, 
prevents  the  acquisition  of  any  subsequent  interest  in 
registered  lands,  except  upon  the  terms  and  conditions 
of  the  act,  among  which  is  the  conclusive  effect  attend- 
ant upon  the  act  of  the  registrar  in  his  subsequent 
dealings  with  the  registered  title. 

T  176  111.  165.  •  Sec.  46. 

s  Sec.  26. 


80  LAND  REGISTRATION  IN  ILLINOIS. 

The  supreme  court  of  Illinois,  in  discussing  this 
question  say:10 

"It  is  further  insisted,  that  by  proceedings  subse- 
"quent  to  the  initial  registration  an  owner  may  be 
"deprived  of  his  property  without  due  process  of  law. 
"In  the  consideration  of  this  point,  it  must  be  remem- 
"bered  that  the  right  to  alienate  or  inherit  property 
"is  always  dependent  upon  the  law.  So  long  as  vested 
"rights  are  not  disturbed  the  law  may  at  any  time 
"change  the  tenure  upon  which  land  is  held,  and  may 
"alter  the  conditions  under  which  it  may  be  alienated 
"and  modify  the  rules  of  evidence  by  which  the  title 
"is  to  be  determined.  The  true  theory  of  this  act,  as 
"we  understand  it,  that  all  holders  of  vested  rights 
"shall  be  subjected  to  an  adjudication  in  a  court  of 
"competent  jurisdiction,  upon  due  notice,  in  order 
"that  the  true  state  of  the  title  may  be  ascertained, 
"and  that  thereafter  the  tenure  of  the  owner,  the  right 
"of  transfer  and  incumbrance  and  all  rights  subse- 
"quently  accruing,  shall  be  determined  in  accordance 
"with  the  rules  now  prescribed.  'A  State  may,  by 
"  'statute,  prescribe  the  remedies  to  be  pursued  in  her 
"  'courts,  and  may  regulate  the  disposition  of  the 
"  'property  of  her  citizens  by  descent,  devise  or  alien- 
"  'ation.11  The  right  of  ownership  which  an  indi- 
"  'vidual  may  acquire  must  therefore,  in  theory,  at 
"  'least,  be  held  to  be  derived  from  the  State,  and  the 
"  'State  has  the  right  and  power  to  stipulate  the  con- 
"  'ditions  and  terms  upon  which  the  land  may  be  held 
"  'by  individuals.' 12  The  power  of  the  State  to  regu- 
late the  terms  of  real  property  within  her  limits, 
"and  the  modes  of  its  acquisition  and  transfer,  and  the 
"rules  of  its  descent  and  the  extent  to  which  a  testa- 

10  People  v.  Simon,  176  111.  165,  176. 

11  3  Washburn  on  Real  Property,  4th  ed.,  p.  187. 

12  Tiedeman  on  Real  Property,  2d  ed.,  sec.  19. 


TORRENS   SYSTEM  AND  AMERICAN    CONSTITUTIONS.    81 

"mentary  disposition  may  be  made  of  it  by  its  owners, 
"is  undoubted.13  The  power  of  the  legislature  in 
"this  respect  (as  to  changing  the  rules  of  evidence  as 
"to  the  burden  of  proof)  whether  affecting  proof  of 
"existing  rights  or  as  applicable  to  rights  subsequently 
"acquired  or  to  future  litigation,  so  long  as  the  rules 
"of  evidence  sought  to  be  established  are  impartial 
"and  uniform  in  their  application,  is  practically  unre- 
"stricted."14 

"It  being  true  that  the  law  may  prescribe  rules  of 
"property  and  rules  of  evidence  by  which  the  title  is 
"to  be  shown,  we  see  no  reason  why  the  transfer  of 
"real  estate  may  not  be  made  in  the  way  contemplated, 
"and  why  it  may  not  be  made  compulsory  to  make  it 
"in  that  way,  if  the  legislature  so  determines." 

This  reasoning  met  the  approval  of  the  Supreme 
Court  of  Massachusetts  in  the  following  language:15 

"The  only  rights  are  registered  rights,  and  when 
"land  is  brought  into  the  registry  system,  there  seems 
"to  be  nothing  to  hinder  the  legislature  from  fixing 
"the  conditions  upon  which  it  shall  be  held  under  that 
"system."16 

COMPULSORY   REGISTRATION   OP   TITLE. 

With  the  advantages  of  registration  conceded,  it 
must  be  admitted  that  compulsory  registration  of  land 
titles  is  the  better  course.  In  England  and  in  the 
German  empire,  the  compulsory  use  of  the  system  has 
been  adopted.  The  English  Colonial  acts,  like  those 
of  Illinois  and  Massachusetts,  permit  but  do  not 
require  an  owner  to  register  his  title.  Of  such  char- 
acter was  the  English  act  of  1875.  Under  such 
optional  acts,  the  want  of  familiarity  with  the  advan- 

is  Arndt  v.  Griggs,  134  U.  S.  316,  on  p.  321. 
i*  Gage  v.  Caraher,  125  111.  447,  on  p.  455. 
is  Tyler  v.  Judges,  etc.,  175  Mass.  71. 
is  People  v.  Simon,  176  111.  176. 

6 


82  LAND  REGISTRATION  IN  ILLINOIS. 

tages  of  registration,  together  with  the  usual  active 
opposition  of  those  "whose  work  and  living  are  fur- 
nished by  conveyancing" 17  operate  to  discourage  the 
bringing  of  land  under  the  act,  whereby  a  needlessly 
long  period  intervenes  before  the  benefits  of  the  system 
are  generally  felt. 

Public  discussion  in  England,  more  or  less  active  for 
thirty  years,  resulted,  in  1897,  in  compulsory  registra- 
tion.18 By  the  act  of  that  year,  it  is  provided  that,  by 
order  in  council,  it  may  be  declared  that  as  to  any 
county,  or  part  of  a  county,  registration  of  title  to 
land  is  to  be  compulsory  on  sale,  and  in  that  case  the 
title  shall  not  pass  until  the  buyer  is  registered  as  the 
proprietor  of  the  land.19 

Another  method  proposed  is  to  require  the  executor 
or  administrator  of  a  deceased  owner  to  apply  for 
registration,  and  thus  prevent  devise  or  descent  until 
after  registration  of  the  title. 

In  so  populous  a  county  as  Cook,  where  sales  are 
so  numerous,  it  seems  probable  that  the  latter  method 
will  be  found  preferable.  The  prevention  of  all  sales 
of  land  in  Chicago  until  registration  be  first  had,  might 
crowd  the  registrar's  office  with  too  many  applications. 
A  smaller  number  of  titles  pass  each  year  through  the 
Probate  Court,  and  during  the  period  required  for  such 
transmission,  registration  might  be  effected  without 
inconvenience.  In  this  way  the  entire  land  in  the 
county  would  come  under  the  act,  as  rapidly,  perhaps, 
as  desirable.  The  expense  of  initial  registration  being 
upon  devisees  and  heirs  would  be  found  least  onerous. 

There  seems  to  be  no  constitutional  difficulty  in  the 
way  of  compelling  registration,  before  permitting  a 
sale,  or  transmission  by  devise  or  descent.  As  pointed 

IT  Dumas  on  Registering  Title  to  Land,  61. 
is  60  and  61,  Viet.  c.  65. 
10  Sec.  20. 


TORRBNS   SYSTEM  AND  AMERICAN    CONSTITUTIONS.    83 

out  in  the  opinion  of  the  Supreme  Court  of  Illinois 
above  quoted,20  the  power  of  the  State  to  regulate  the 
disposition  of  land  within  her  confines,  by  descent, 
devise  or  alienation,  is. undoubted. 

20  People  v.  Simon,  176  111.  176. 


CHAPTER   VI. 

SUPREME  COURT  OPINIONS. 

Supreme  Court  of  Illinois,  People  v.  Simon.* 

Mr.  Justice  Wilkin  delivered  the  opinion  of  the 
court: 

This  action  originated  in  the  court  below  upon  an 
information  in  the  nature  of  a  quo  warranto  against 
appellee,  requiring  him  to  show  by  what  authority  of 
law  he  was  exercising  the  powers  and  duties  of  the 
office  of  registrar  of  titles  in  and  for  the  county  of 
Cook.  In  answer  to  the  information  the  defendant 
set  up  the  act  of  the  legislature  entitled  "An  act 
concerning  land  titles,"  approved  and  in  force  May  1, 
1897,  commonly  known  as  the  "Torrens  Law."2  The 
relator  filed  a  general  demurrer  to  this  answer,  which 
was  overruled  and  the  information  dismissed.  The 
ground  of  the  demurrer  was,  that  the  act  under  which 
the  respondent  sought  to  justify  is  unconstitutional 
and  void,  and  that  is  the  question  now  presented  for 
our  decision. 

The  act  is  very  voluminous  and  some  of  its  provisions 
are  not  skillfully  drafted.  Its  validity  is  attacked  on 
numerous  grounds,  and  the  briefs  and  arguments  on 
either  side  are  very  extended.  We  will  endeavor  to 
consider  the  objections  raised  to  the  law  in  the  order 
in  which  they  are  discussed  by  counsel. 

It  is  first  insisted  that  the  act  confers  judicial  powers 
upon  the  registrar  of  titles,  or  upon  him  and  the  exam- 
iners of  title,  in  violation  of  the  constitution  of  this 
State.  A  somewhat  similar  act  passed  in  1895  was 
held  invalid  on  that  ground  in  People  v.  Chase.3  By 

1 176  111.  165.  s  165  111.  527. 

2  Laws  of  1897,  p.  141. 

84 


SUPREME  COURT  OPINIONS.  85 

the  provisions  of  the  law  of  1895  the  registrar  was 
clothed  with  power  to  determine  the  ownership  of  land 
when  application  was  made  for  the  initial  registration 
thereof,  and  to  issue  his  certificate  accordingly.  Tfre 
present  act  provides  that  the  ownership  shall  be  deter- 
mined by  a  decree  in  equity  entered  in  a  court  of 
competent  jurisdiction,  upon  which  decree  the  regis- 
trar shall  issue  the  first  certificate  of  registration.  In 
this  regard  his  duties  under  the  present  law  are  clearly 
ministerial  only,  and  the  fatal  objection  to  the  former 
act  is  therefore  removed. 

But  it  is  insisted  that  the  law  is  still  vulnerable,  in 
that  it  vests  judicial  power  in  the  registrar  in  the 
performance  of  his  duties  as  to  subsequent  registra- 
tions. Waiving  the  question  whether  this  would,  if 
true,  necessarily  vitiate  the  whole  act,  is  the  position 
tenable?  Like  a  mere  recorder,  the  registrar  is  required 
to  file  all  deeds,  mortgages,  leases  and  other  instru- 
ments affecting  the  title  to  land,  and  make  proper 
notations  upon  the  instruments  and  upon  the  record. 
He  is  to  keep  a  record  to  be  known  as  the  "Register 
of  Titles,"  in  which  must  be  entered  the  original  and 
all  subsequent  certificates  of  title,  and  such  notations 
as  to  liens,  incumbrances  and  the  like  as  are  requisite 
to  show  the  true  condition  of  the  title.  When  any 
instrument  is  filed  with  him  which  is  intended  to  create 
a  charge,  lien  or  incumbrance  upon  land,  it  is  made 
his  duty,  by  section  60,  to  enter  a  memorial  upon  the 
register  and  also  upon  the  original  certificate.  Thus 
far  his  duties  are  clearly  and  simply  ministerial.  But 
it  is  contended  this  section  60  authorizes  him  to  deter- 
mine the  validity  of  liens,  incumbrances  or  charges, 
and  the  argument  is,  that  this  is  an  exercise  of  judicial 
power,  which,  under  our  constitution,  can  be  conferred 
upon  no  officer  or  tribunal  save  those  which  belong  to 
the  judicial  department.  The  language  of  the  section 


86  LAND  REGISTRATION  IN  ILLINOIS. 

applicable  to  this  question  is  as  follows:  "It  appearing 
to  the  registrar  that  the  person  intending  to  create  the 
charge  has  the  title  and  right  to  create  such  charge, 
and  that  the  person  in  whose  favor  the  same  is  sought 
to  be  created  is  entitled  by  the  terms  of  this  act  to 
have  the  same  registered,  he  shall  enter  upon  the 
proper  folium  of  the  register,  and  also  upon  the 
owner's  certificate,  a  memorial  of  the  purport  thereof," 
etc.  It  will  be  noticed  that  the  provisions  in  case  of 
a  transfer  of  the  property  are  substantially  the  same. 
Section  47  says:  "Upon  its  being  made  to  appear  to 
the  registrar  that  the  transferee  (evidently  intending 
transferrer)  has  the  title  or  estate  proposed  to  be 
transferred  and  is  entitled  to  make  the  conveyance, 
and  that  the  transferee  has  the  right  to  have  such 
estate  or  interest  transferred  to  him,  he  shall  make 
out  and  register  as  hereinbefore  provided,  a  new  cer- 
tificate," etc.  Article  3  of  the  constitution  of  1870 
reads  as  follows:  "The  powers  of  the  government  of 
this  State  are  divided  into  three  distinct  departments, 
— the  legislative,  executive  and  judicial;  and  no  per- 
son or  collection  of  persons,  being  one  of  those  depart- 
ments, shall  exercise  any  power  properly  belonging  to 
either  of  the  others,  except  as  hereinafter  expressly 
directed  or  permitted."4  The  question  therefore  is,  can 
the  legislature  devolve  the  duties  named  upon  an 
officer  not  a  member  of  the  judicial  department? 

That  the  duties  mentioned  are  judicial  in  their 
nature  may  be  admitted,  but  it  does  not  necessarily 
follow  that  their  exercise  is  prohibited  by  the  consti- 
tutional provision  to  all  but  officers  belonging  to  the 
judicial  department.  Numerous  instances  may  be  cited, 
as  is  done  in  Owners  of  Lands  v.  People5  (referred  to 
in  People  v.  Chase,  supra),  where  executive  and  legis- 
lative officers  are  authorized  to  exercise  powers  which 

•* Rev.  Stat.  p.  60.  6  H3   m.  296. 


SUPREME  COURT  OPINIONS.  87 

in  a  sense  are  judicial,  and  the  laws  imposing  such 
duties  held  not  to  be  in  violation  of  the  constitutional 
provision  quoted.  These  duties  or  powers  are  generally 
and  properly  termed  "quasi  judicial,"  to  distinguish 
them  from  those  which  are  judicial  in  the  sense  of 
belonging  to  the  judicial  department  exclusively.  In 
theory  all  governmental  power  is  divided  into  the 
three  named  divisions,  and  upon  a  casual  consideration 
the  division  would  seem  to  present  no  difficulty,  but  in 
the  practical  application  of  the  principles  involved 
courts  have  been  compelled  to  observe  that  the  line 
of  demarkation  between  the  exclusive  powers  of  the 
three  departments  is  far  from  clear.6  Judge  Cooley, 
in  his  work  on  Constitutional  Limitations  on  the  Legis- 
lative Branch  of  the  Government,  has  given  a  definition 
of  "judicial  power."  It  is  this:  "The  power  which 
adjudicates  upon  and  protects  the  rights  and  interests 
of  individual  citizens,  and  to  that  end  construes  and 
applies  the  laws."  As  a  general  definition  of  the 
functions  of  the  judicial  department  it  is  sufficiently 
accurate,  and  we  adopted  it  in  the  case  of  People  v. 
Chase,  supra.  We  then  thought,  and  are  of  the  opinion 
still,  that  it  was  applicable  to  that  case,  the  functions 
of  the  registrar,  under  the  act  of  1895,  being  not  quasi 
judicial,  merely,  but  strictly  so,  and  such  as  are  usually 
exercised  by  the  courts  alone,  constituting  the  exercise 
of  judicial  power  within  the  constitutional  prohibition. 
Under  the  present  act  his  duties  more  nearly  resemble 
those  frequently  exercised  by  members  of  the  executive 
department. 

The  definition  given  by  Judge  Cooley  does  not 
attempt  to  mark  the  line  between  those  quasi  judicial 
functions  which  may  be  vested  elsewhere,  and  those 
strictly  judicial,  which  can  be  reposed  nowhere  save 
in  the  courts,  and  for  that  reason  it  cannot  be  properly 

«  6  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  p.  1007. 


88  LAND  REGISTRATION  IN  ILLINOIS. 

adopted  in  this  case.  As  we  said  in  another  case:  "It 
may  in  many  cases  be  a  matter  of  difficulty  to  deter- 
mine the  precise  line  which  divides  the  executive  and 
judicial  functions.  It  has  been  said  that  where  the 
functionary  hears,  considers  and  determines,  then  he 
performs  judicial  acts.  This  definition  is  not  strictly 
accurate.  *  *  *  It  embraces  cases  that  are  not 
judicial,  and  hence  is  too  comprehensive."7  And 
appreciating  the  difficulty  of  defining  the  limits  of  the 
several  departments  of  government  we  also  said  in  an 
earlier  case:  "Nevertheless,  when  we  come  to  apply 
them  to  actual  controversies  growing  out  of  the  varied 
relations  which  the  citizens  sustain  to  the  State  and  to 
one  another,  we  encounter  doubts  and  difficulties  of 
the  gravest  character.  Just  where  the  dividing  line 
is  to  be  drawn  between  judicial  and  legislative  power, 
with  respect  to  certain  subjects,  often  presents  ques- 
tions about  which  enlightened  courts  and  eminent 
jurists  widely  differ.  So  while  the  powers  of  courts 
seem  so  very  simple  and  clearly  defined,  yet  in  the 
application  of  them  to  actual  cases  their  proper  limits 
are  often  difficult  to  determine."8  Also:  "The  first  and 
second  sections  of  the  first  article  of  the  constitution 
(of  1818)  divide  the  powers  of  government  into  three 
departments, — the  legislative,  executive  and  judicial, 
— and  declare  that  neither  of  these  departments  shall 
exercise  any  of  the  powers  properly  belonging  to 
either  of  the  others,  except  as  expressly  permitted. 
This  is  a  declaration  of  a  fundamental  principle,  and, 
although  one  of  vital  importance,  it  is  to  be  understood 
in  a  limited  and  qualified  sense.  It  does  not  mean  that 
the  legislative,  executive  and  judicial  power  should  be 
kept  so  entirely  distinct  and  separate  as  to  have  no 
connection  or  dependence,  the  one  upon  the  other;  but 

7  Donahue  v.  Will  County,  100  111.  94,  on  p.  108. 
s  Dodge  v.  Cole,  97  111.  338,  on  p.  357. 


SUPREME  COURT  OPINIONS.  89 

its  true  meaning,  both  in  theory  and  practice,  is,  that 
the  whole  power  of  two  or  more  of  these  departments 
shall  not  be  lodged  in  the  same  hands,  whether  of  one 
or  many."9 

Judge  Story,  in  his  work  on  the  Constitution,  says: 
"But  when  we  speak  of  a  separation  of  the  three  great 
departments  of  government,  and  maintain  that  their 
separation  is  indispensable  to  public  liberty,  we  are 
to  understand  this  maxim  in  a  limited  sense.  It  is  not 
meant  to  affirm  that  they  must  be  kept  wholly  separate 
and  distinct  and  have  no  common  link  of  connection 
or  dependence,  one  upon  the  other,  in  the  slightest  de- 
gree. The  true  meaning  is,  that  the  whole  power  of  one 
of  these  departments  should  not  be  exercised  by  the 
same  hands  which  possess  the  whole  power  of  either 
of  the  other  departments,  and  that  such  exercise  of  the 
whole  would  subvert  the  principles  of  a  free  constitu- 
tion.10" "Notwithstanding  the  memorable  terms  in 
which  this  maxim  of  a  division  of  powers  is  incorpor- 
ated into  the  bills  of  rights  of  many  of  our  State  con- 
stitutions, the  same  mixture  will  be  found  provided 
for,  and,  indeed,  required,  in  the  same  solemn  instru- 
ments of  government.  *  *  *  Indeed,  there  is  not 
a  single  constitution  of  any  State  in  the  Union  which 
does  not  practically  embrace  some  acknowledgment 
of  the  maxim  and  at  the  same  time  some  admixture 
of  powers  constituting  an  exception  to  it."11 

In  the  case  of  Murray's  Lessee  v.  Hoboken  Land  and 
Improvement  Co.,12  in  discussing  whether  the  issuing 
of  a  distress  warrant  by  the  solicitor  of  the  treasury 
was  the  exercise  of  executive  or  of  judicial  power,  the 
Supreme  Court  of  the  United  States  (p.  280)  say:  "It 

»  Field  v.  People,  2  Scam.  79,  on  p.  83. 

10  1  Story  on  the  Const.,  5th  ed.,  sec.  525. 

11  Ibid.  sec.  527,  p.  395. 
"18  How.  272. 


90  LAND  REGISTRATION  IN  ILLINOIS. 

is  not  sufficient  to  bring  such  matters  under  the 
judicial  power  that  they  involve  the  exercise  of  judg- 
ment upon  law  and  fact.  *  *  *  That  the  auditing 
of  the  accounts  of  a  receiver  of  public  moneys  may  be, 
in  an  enlarged  sense,  a  judicial  act,  must  be  admitted. 
So  are  all  those  administrative  duties  the  performance 
of  which  involves  an  inquiry  into  the  existence  of  facts 
and  the  application  to  them  of  rules  of  law.  *  *  * 
We  do  not  doubt  the  power  of  Congress  to  provide  by 
law  that  such  a  question  shall  form  the  subject  matter 
of  a  suit  in  which  the  judicial  power  can  be  exerted. 
The  act  of  1820  makes  such  a  provision  for  reviewing 
the  accounting  officers  of  the  treasury,  but  until  it  is. 
reviewed  it  is  final  and  binding;  and  the  question  is, 
whether  its  subject  matter  is  necessarily,  and  without 
regard  to  the  consent  of  Congress,  a  judicial  contro- 
versy, and  we  are  of  opinion  it  is  not." 

From  these  authorities  it  is  apparent  that  the  mere 
fact  that  the  registrar  is  required  by  this  act  to  inquire 
into  the  existence  of  certain  facts  and  to  apply  the  law 
thereto  in  order  to  determine  what  his  official  conduct 
shall  be,  and  that  his  action  may  affect  private  rights, 
does  not  constitute  the  exercise  of  judicial  power, 
strictly  speaking.  It  is  not  the  intention  of  these  two 
sections  (60  and  47)  to  provide  a  tribunal  for  the 
adjudication  of  disputes  concerning  land  titles.  The 
primary  purpose  is  the  issuing  of  the  certificate, 
and  the  exercise  of  the  judgment  of  the  registrar  is 
incidental.  The  prohibition  in  question  "has  never 
been  held  to  apply  to  those  cases  where  judgment  is 
exercised  as  incident  to  the  execution  of  a  ministerial 
power."13  The  powers  exercised  by  the  registrar  under 
this  law  are  analogous  to  those  exercised  by  the  com- 
missioner of  patents.  A  power  of  decision  is  given  to 
that  officer  in  many  matters,  not  only  between  the 

is  Owners  of  Lands  v.  People,  supra. 


SUPREME  COURT  OPINIONS.  91 

government  and  the  patentee,  but  also  between  differ- 
ent claimants,  as  to  priority,  patentability  and  like 
matters,  and  in  the  performance  of  these  duties  it  has 
never  been  considered  that  he  was  encroaching  upon 
the  judicial  domain.  They  are  also,  in  a  measure,  like 
the  duties  performed  by  officers  of  the  land  office. 
Duties  of  a  similar  nature,  involving  judgment  or 
discretion  and  the  application  of  the  law  to  the  facts, 
are  devolved  both  under  the  State  and  Federal  laws 
upon  many  other  executive  officers,  legally.  In  some 
instances  it  is  even  held  that  in  the  exercise  of  such 
judgment  the  officer  is  free  from  judicial  interference. 
But  in  the  case  of  the  registrar  this  act  provides  that 
any  person  feeling  himself  aggrieved  by  the  act  or 
neglect  of  this  officer,  in  any  matter  pertaining  to  the 
duties  required  of  him,  may  file  a  petition  in  equity  in 
the  proper  court,  making  the  registrar  and  other  per- 
sons interested  parties  defendant,  and  that  the  court 
may  proceed  therein  as  in  other  cases  in  equity,  and 
may  make  such  order  or  decree  as  shall  be  according 
to  equity  in  the  premises  and  the  purport  of  the  act. 
This,  with  the  well  known  jurisdiction  of  the  courts  in 
mandamus,  injunction,  rescission,  cancellation,  bills  of 
relief,  and  the  like,  will  effectually  protect  the  citizen 
against  any  arbitrary  conduct  on  the  part  of  the 
officer. 

Recurring  to  the  duties  of  the  registrar,  we  find  that 
in  case  of  a  tax  sale  or  judgment,  or  levy  under  an 
attachment  or  execution,  or  in  case  of  a  mechanic's 
lien,  the  registrar,  upon  the  filing  of  the  proper  certifi- 
cate, enters  a  memorial  thereof  upon  his  record,  and 
in  case  the  lien  ripens  into  a  title  the  former  certificate 
of  title  is  canceled  and  a  new  one  issued  to  the  proper 
party.  These  duties  do  not  differ  in  character  from 
those  already  mentioned,  and  what  has  been  said  is 
equally  applicable  thereto  also.  Particular  stress, 


92  LAND  REGISTRATION  IN  ILLINOIS. 

however,  is  laid  by  counsel  for  appellant  upon  the  con- 
tention that  the  duties  of  the  registrar  as  to  the  subse- 
quent registration  of  land  held  in  trust  upon  conditions 
or  limitations,  are  the  exercise  of  judicial  power,  in 
violation  of  the  terms  of  the  constitution.  The  act 
requires,  where  the  land  is  subject  to  a  trust,  condition 
or  limitation,  that  the  original  certificate  issued  shall 
contain  the  words  "in  trust,"  "upon  conditions"  or 
"with  limitations,"  as  the  case  may  be.  When  such 
land  is  to  be  transferred,  it  is  provided  that  the  regis- 
trar shall  not  issue  a  new  certificate,  nor  shall  any 
transfer  of  or  charge  upon  or  dealing  with  the  land 
be  made,  unless  pursuant  to  the  order  of  some  court, 
or  upon  the  written  opinion  of  the  two  examiners  that 
such  transfer,  charge  or  dealing  is  in  accordance  with 
the  true  intent  and  meaning  of  the  trust,  condition  or 
limitation,  whereupon  he  shall  proceed  to  register  the 
title,  and  such  registration  is  to  be  conclusive  in  favor 
of  the  grantee,  and  those  claiming  under  him  in  good 
faith  and  for  a  valuable  consideration,  that  such  trans- 
fer, charge  or  other  dealing  is  in  accordance  with  the 
true  intent  and  meaning  of  the  trust,  condition  or  limi- 
tation.14 If  the  registration  be  made  pursuant  to  the 
order  or  finding  of  a  court  of  competent  jurisdiction 
the  acts  of  the  registrar  are  purely  ministerial,  but  if 
made  upon  the  opinion  of  the  two  examiners  he  is 
required  to  exercise  a  judgment  of  his  own.  These 
duties  do  not  differ  materially  from  those  already 
examined,  except  that  here  the  decision  is  made  con- 
clusive in  favor  of  the  person  taking  the  transfer  in 
good  faith  and  for  a  valuable  consideration,  that  the 
transfer  or  charge  is  in  accordance  with  the  true  intent 
and  meaning  of  the  trust,  condition  or  limitation.  This 
does  no  more  than  abrogate  the  rule  in  equity  which 
requires  the  purchaser  of  trust  property  to  see  to  the 
14  Sees.  68,  69. 


SUPREME  COURT  OPINIONS.  93 

application  of  the  purchase  money,  and  the  inclination 
of  courts  now  is  to  withdraw  from  that  rule.  We 
recently  said,  quoting  from  Judge  Story:  "These  are 
some  of  the  most  important  and  nice  distinctions  which 
have  been  adopted  by  courts  of  equity  upon  this 
intricate  topic,  and  they  lead  strongly  to  the  conclu- 
sion, to  which  not  only  eminent  jurists  but  also  eminent 
judges  have  arrived,  that  it  would  have  been  far  better 
to  have  held  in  all  cases  that  the  party  having  the  right 
to  sell  had  also  the  right  to  receive  the  purchase  money, 
without  any  further  responsibility  on  the  part  of  the 
purchaser  as  to  its  application."15  This  statute  also 
changes  the  rule  of  law  as  to  notice.  We  know  of  no 
reason  why  the  legislature  might  not  change  either  or 
both  of  these  rules  without  violating  the  constitution. 
Certainly,  as  to  the  future  all  trusts  could  be  entirely 
abolished  by  the  legislature,  as  was  done  in  cases  of 
uses  by  the  Statute  of  Uses.  As  the  law  now  stands, 
cases  frequently  arise  in  .which  bona  fide  purchasers 
take  property  free  from  existing  trusts,  and  are  not 
held  bound  to  see  to  the  application  of  the  consider- 
ation. 

The  second  point  insisted  upon  in  the  argument  is, 
that  the  provisions  of  the  act  permit  the  taking  of 
private  property  without  "due  process  of  law."  In  the 
initial  registration  the  provisions  are  for  an  application 
to  a  court  of  chancery,  and  that  the  fee  must  be  first 
registered.  To  this  application  the  following  persons 
are  to  be  made  defendants:  The  occupant,  if  the  land 
is  occupied  by  any  other  person  than  the  applicant; 
the  holder  of  any  lien  or  incumbrance;  other  persons 
having  any  estate  or  claiming  any  interest  in  the  land 
in  law  or  in  equity,  in  possession,  remainder,  reversion 
or  expectancy.16  All  other  persons  are  to  be  made 

is  Seaverns  v.  Presbyterian  Hospital,  173  111.  414,  on  p.  424. 
is  Sec.  11. 


94  LAND  REGISTRATION  IN  ILLINOIS. 

parties  defendant  by  the  name  and  designation  of  "all 
whom  it  may  concern."17  Summons  is  to  issue  against 
all  persons  mentioned  as  defendants,  and  is  to  be 
served  as  in  other  cases  in  chancery.  Notice  is  also  to 
be  published  and  mailed  to  such  defendants  substan- 
tially as  in  other  chancery  cases,  and  the  court  may 
direct  further  notice  to  be  given.18  Upon  a  failure  to 
answer  default  may  be  entered,  and  upon  the  hearing 
decree  entered  finding  in  whom  the  title  is  vested,  and 
declaring  the  same  subject  to  such  liens,  incumbrances, 
trusts  or  interests,  if  any,  as  are  shown  to  exist,  and 
directing  the  registration  to  be  made.19  The  exception 
taken  to  these  provisions  is,  that  they  authorize,  judg- 
ment to  be  taken  against  a  resident  of  the  State  upon 
mere  constructive  service.  It  is  certainly  fundamental 
that  no  man  shall  be  condemned  unheard  or  without 
notice.  While  a  substituted  service  is  permitted  in 
some  instances,  particularly  in  case  of  non-residents, 
this  is  because  of  the  necessities  of  the  case.  The  act 
does  contemplate,  in  some  contingencies  at  least, 
actual  personal  service,  and  the  general  law  provides 
for  publication  as  to  unknown  owners  and  persons  in 
interest,  and  non-residents.  An  applicant  may  proceed 
in  this  way,  and  in  strict  accordance  with  the  act 
obtain  a  decree  or  finding  as  to  his  title  which  will  be 
binding  beyond  all  question,  so  that  even  if  the  proper 
construction  of  the  provision  were  that  it  attempted 
to  authorize  judgment  against  a  resident  notified  only 
by  publication,  yet  the  law  can  be  given  practical 
effect,  in  which  event  only  the  particular  provision 
would  fail,  and  not  the  whole  law. 

It  is  further  insisted,  that  by  proceedings  subsequent 
to  the  initial  registration  an  owner  may  be  deprived 
of  his  property  without  due  process  of  law.  In  the 

i?  Sec.  16.  i»  Sees.  23,  25. 

is  Sees.  19,  20,  21. 


SUPREME  COURT  OPINIONS.  95 

consideration  of  this  point  it  must  be  remembered  that 
the  right  to  alienate  or  inherit  property  is  always 
dependent  upon  the  law.  So  long  as  vested  rights 
are  not  disturbed  the  law  may  at  any  time  change  the 
tenure  upon  which  land  is  held,  and  may  alter  the 
conditions  under  which  it  may  be  alienated  and  modify 
the  rules  of  evidence  by  which  the  title  is  to  be  deter- 
mined. The  true  theory  of  this  act,  as  we  understand 
it,  is,  that  all  holders  of  vested  rights  shall  be  subjected 
to  an  adjudication  in  a  court  of  competent  jurisdiction, 
upon  due  notice,  in  order  that  the  true  state  of  the 
title  may  be  ascertained  and  declared,  and  that  there- 
after the  tenure  of  the  owner,  the  right  of  transfer  and 
incumbrance,  and  all  rights  subsequently  accruing, 
shall  be  determined  in  accordance  with  the  rules  now 
prescribed.  "A  State  may,  by  statute,  prescribe  the 
remedies  to  be  pursued  in  her  courts,  and  may  regulate 
the  disposition  of  the  property  of  her  citizens  by 
descent,  devise  or  alienation."20  "The  right  of  owner- 
ship which  an  individual  may  acquire  must  therefore, 
in  theory,  at  least,  be  held  to  be  derived  from  the  State, 
and  the  State  has  the  right  and  power  to  stipulate  the 
conditions  and  terms  upon  which  the  land  may  be  held 
by  individuals."21  "The  power  of  the  State  to  regulate 
the  tenure  of  real  property  within  her  limits,  and  the 
modes  of  its  acquisition  and  transfer,  and  the  rules  of 
its  descent,  and  the  extent  to  which  a  testamentary 
disposition  of  it  may  be  exercised  by  its  owners,  is 
undoubted."22  "The  power  of  the  legislature  in  this 
respect  (as  to  changing  the  rules  of  evidence  as  to  the 
burden  of  proof),  whether  affecting  proof  of  existing 
rights  or  as  applicable  to  rights  subsequently  acquired 
or  to  future  litigation,  so  long  as  the  rules  of  evidence 

20  3  Washburn  on  Real  Prop.,  4th  ed.,  p.  187. 

21  Tiedeman  on  Real  Prop.,  2d  ed.,  sec.  19. 

22  Arndt  v.  Griggs,  134  U.  S.  316,  on  p.  321. 


96  LAND  REGISTRATION  IN  ILLINOIS. 

sought  to  be  established  are  impartial  and  uniform  in 
their  application,  is  practically  unrestricted."23 

It  being  true  that  the  law  may  prescribe  rules  of 
property  and  rules  of  evidence  by  which  the  title  is  to 
be  shown,  we  see  no  reason  why  the  transfer  of  real 
estate  may  not  be  made  in  the  way  contemplated,  and 
why  it  may  not  be  made  compulsory  to  make  it  in  that 
way,  if  the  legislature  so  determines. 

In  our  view  of  the  case  the  indemnity  fund  feature 
of  the  law  need  not  be  considered.  The  law  can,  as 
we  think,  stand  and  accomplish  its  purpose  without  it. 

Objection  is  also  made  that  by  section  26  any  person 
who  has  any  interest  in  the  land,  whether  personally 
served,  notified  by  publication  or  not  served  at  all, 
must,  within  two  years  after  the  entry  of  the  decree, 
appear  and  file  an  answer,  and  that  after  the  expiration 
of  that  term  of  two  years  the  decree  shall  (with  certain 
exceptions)  be  "forever  binding  and  conclusive  upon 
all  persons."  This  provision  seems  to  attempt  to  make 
a  decree  binding  upon  persons  not  parties  to  the  suit, 
and  if  given  effect  literally,  would  deprive  persons  of 
vested  rights  without  due  process  of  law.  A  limitation 
may  be  placed  upon  the  time  within  which  a  person 
who  has  a  mere  right  of  action  shall  bring  it,  but 
"limitation  laws  cannot  compel  a  resort  to  legal  pro- 
ceedings by  one  who  is  already  in  the  complete  enjoy- 
ment of  all  he  claims."24  To  the  extent  that  the  act 
attempts  to  transfer  property  without  due  process  of 
law  it  cannot  be  upheld.  On  all  parties  to  the  suit 
properly  before  the  court  the  decree  may,  after  the 
lapse  of  two  years,  become  conclusive  and  forever  bind- 
ing, and  as  to  all  who  have  merely  a  right  of  action 
the  expiration  of  two  years  may  complete  the  bar. 
Even  though  the  language  of  this  section  may  be  broad 

23  Gage  v.  Caraher,  125  111.  447,  on  p.  455. 
2*Cooley's  Const.  Lim.    p.  366. 


SUPREME  COURT  OPINIONS.  97 

enough  to  amount  to  an  attempt  to  transfer  an  estate 
by  the  law  or  by  decree,  yet  it  is  possible  to  carry  out 
the  purposes  of  the  act  without  violating  the  consti- 
tution in  the  respect  complained  of.  Such  objectionable 
features,  or  those  calling  for  construction,  must  be  left 
to  future  legislation,  or  determination  by  the  courts  in 
cases  where  the  conflict  is  apparent  and  the  question 
directly  involved. 

We  are  also  of  the  opinion  that  sections  26  and  40 
can  be  sustained  by  construing  them  as  a  limitation 
law.  "Whenever  an  act  of  the  legislature  can  be  so 
construed  and  applied  as  to  avoid  conflict  with  the 
constitution,  and  give  to  it  the  force  of  law,  such  con- 
struction will  be  adopted  by  the  courts.  Therefore, 
acts  of  the  legislature  in  terms  retrospective,  and 
which,  literally  interpreted,  would  invalidate  and 
destroy  vested  rights,  are  upheld  by  giving  them  pros- 
pective operation  only,  for,  applied  to  and  operating 
upon  future  acts  and  transactions  only,  they  are  rules 
of  property,  under  and  subject  to  which  the  citizen 
acquires  property  rights,  and  are  obnoxious  to  no  con- 
stitutional limitation,  but  as  retroactive  laws  they 
reach  to  and  destroy  existing  rights,  through  force  of 
the  legislative  will,  without  a  hearing  or  judgment  of 
law.  So  will  acts  of  the  legislature  having  elements 
of  limitation,  and  capable  of  being  so  applied  and 
administered,  although  the  words  are  broad  enough  to, 
and  do,  literally  read,  strike  at  the  right  itself,  be 
construed  to  limit  and  control  the  remedy,  for  as  such 
they  are  valid,  but  as  weapons  destructive  of  vested 
rights  they  are  void,  and  such  force  only  will  be  given 
the  acts  as  the  legislature  could  impart  to  them."25 

The  recent  case  of  State  of  Ohio  v.  Guilbert26  is 
relied  upon  by  counsel  for  appellant  in  support  of  the 

25  Newland  v.  Marsh,  19  111.  376. 
20  47  N.  E.  Rep.  551. 
7 


98  LAND  REGISTRATION  IN  ILLINOIS. 

position  taken  by  them  on  both  of  the  above  points. 
We  have  given  that  case  careful  consideration.  With 
its  conclusion,  viz.,  that  the  Ohio  statute  was  uncon- 
stitutional, we  agree,  but  what  is  said  in  argument 
cannot  be  adopted  as  applicable  to  this  case.  The 
main  ground  upon  which  that  decision  rests  is,  that 
the  statute,  in  providing  for  the  initial  registration, 
attempts  to  give  jurisdiction  to  the  court  without 
service  of  summons,  and  this,  it  is  held,  falls  short  of 
that  due  process  of  law  guaranteed  by  the  constitution. 
The  only  notice  which  that  act  required  was  to  be  given 
by  the  applicant  himself,  and  in  the  application  it  was 
unnecessary  to  name  any  person  claiming  an  adverse 
interest,  as  party  defendant.  On  the  other  feature  of 
the  case,  viz.,  as  to  what  constitutes  the  exercise  of 
judicial  power,  the  opinion  is  not  clear.  In  the  reason- 
ing on  that  point  Judge  Cooley's  definition  of  judicial 
power  is  adopted,  which  we  have  seen  does  not  serve 
to  distinguish  between  such  quasi  judicial  powers  as 
may  be  properly  exercised  by  executive  or  ministerial 
officers  and  those  powers  which  belong  solely  to  the 
judicial  department. 

The  third  point  made  against  the  law  is,  that  the 
provision  which  says  that  the  law  shall  take  effect  only 
after  a  favorable  vote  by  counties,  is  an  attempt  to 
delegate  legislative  power;  and  the  fourth  is,  that  the 
law  is  not  a  general  but  special  law.  It  is  unnecessary 
to  discuss  these  points.  It  is  sufficient  to  say  that 
both  have  been  decided  adversely  to  the  contention 
of  appellant  in  the  case  of  People  v.  Hoffman.27  That 
decision  has  become  the  rule  of  law  in  this  State,  and 
we  see  no  sufficient  reason  for  overruling  it. 

We  are  not  impressed  with  the  soundness  of  the  ob- 
jections to  those  sections  of  the  statute  which  relate  to 
the  descent  of  lands  on  the  death  of  a  registered  owner, 

27  116  111.  587. 


SUPREME  COURT  OPINIONS.  99 

and  to  the  sale  and  mortgage  of  real  estate  belonging 
to  minors  or  others  under  disability.  They  are,  how- 
ever, objections  which  do  not  go  to  the  validity  of  the 
entire  law.  They  involve  a  construction  of  those  sec- 
tions, and  can  only  be  satisfactorily  determined  if  cases 
shall  arise  involving  their  validity.  It  would  be  alike 
impracticable  and  unprofitable  to  attempt  now  to  give 
a  construction  to  every  provision  of  this  law.  The 
question  here  is,  does  the  act  violate  the  constitution 
so  far  as  to  render  it  void,  and  therefore  furnish  no 
justification  for  the  exercise  of  the  acts  of  the  respond- 
ent challenged?  In  the  determination  of  that  question 
every  reasonable  doubt  must  be  resolved  in  favor  of 
the  validity  of  the  law. 

We  have  endeavored  to  give  the  case  that  delib- 
erate consideration  its  importance  demands,  and  have 
reached  the  conclusion  that  the  judgment  of  the 
Criminal  Court  should  be  affirmed. 

Judgment  affirmed. 

SUPREME  COURT  OF  MASSACHUSETTS. 
Tyler  v.  Judges  of  the  Court  of  Registration.^ 

Holmes,  C.  J.  This  is  a  petition  for  a  writ  of  prohi- 
bition against  the  judges  of  the  court  of  registration 
established  by  St.  1898,  c.  562,  and  is  brought  to  prevent 
their  proceeding  upon  an  application  concerning  land 
in  which  the  petitioner  claims  an  interest.  The  ground 
of  the  petition  is  that  the  act  establishing  the  court  is 
unconstitutional.  Two  reasons  are  urged  against  the 
act,  both  of  which  are  thought  to  go  to  the  root  of  the 
statute  and  to  make  action  under  it  impossible.  The 
first  and  most  important  is  that  the  original  registra- 
tion deprives  all  persons  except  the  registered  owner 
of  any  interest  in  the  land  without  due  process  of  law. 

1 175  Mass.  171. 


100  LAND  REGISTRATION  IN  ILLINOIS. 

Tliere  is  no  dispute  that  the  object  of  the  system, 
expressed  in  section  38,  is  that  the  decree  of  registra- 
tion "shall  bind  the  land  and  quiet  the  title  thereto," 
and  "shall  be  conclusive  upon  and  against  all  per- 
sons" whether  named  in  the  proceedings  or  not,  subject 
to  few  and  immaterial  exceptions.  And  this  being 
admitted,  it  is  objected  that  there  is  no  sufficient  proc- 
ess against,  or  notice  to,  persons  having  adverse 
claims  in  a  proceeding  intended  to  bar  their  possible 
rights. 

The  application  for  registration  is  to  be  in  writing 
and  signed  and  sworn  to.  It  is  to  contain  an  accurate 
description  of  the  land,  to  set  forth  clearly  other  out- 
standing estates  or  interest  known  to  the  petitioner, 
to  identify  the  deed  by  which  he  obtained  the  title,  to 
state  the  name  and  address  of  the  occupant,  if  there  is 
one,  and  also  to  give  the  names  and  addresses,  so  far 
as  known,  of  the  occupants  of  all  lands  adjoining 
(section  21).  As  soon  as  it  is  filed,  a  memorandum 
containing  a  copy  of  the  description  of  the  land  con- 
cerned is  to  be  filed  in  the  registry  of  deeds  (section 
20).  The  case  is  immediately  referred  to  an  examiner 
(appointed  by  the  judge,  section  12),  who  makes  as  full 
an  investigation  as  he  can,  and  reports  to  the  court 
(section  29).  If  in  the  opinion  of  the  examiner  the 
applicant  has  a  good  title  as  alleged,  or  if  the  applicant 
after  an  adverse  opinion  elects  to  proceed  further,  the 
recorder  is  to  publish  a  notice  by  order  of  the  court  in 
some  newspaper  published  in  the  district  where  any 
portion  of  the  land  lies.  This  notice  is  to  be  addressed 
by  name  to  all  persons  known  to  have  an  adverse  inter- 
est, and  to  the  adjoining  owners  and  occupants  so  far 
as  known,  and  to  all  whom  it  may  concern.  It  is  to 
contain  a  description  of  the  land,  the  name  of  the  appli- 
cant and  the  time  and  the  place  of  the  hearing  (section 
31).  A  copy  is  to  be  mailed  to  every  person  named  in 


SUPREME  COURT  OPINIONS.  101 

the  notice  whose  address  is  known,  and  a  duly  attested 
copy  is  to  be  posted  in  a  conspicuous  place  on  each 
parcel  of  land  included  in  the  application,  by  a  sheriff 
or  deputy  sheriff,  fourteen  days  at  least  before  the 
return  day.  Further  notice  may  be  ordered  by  the  court 
(section  32). 

It  will  be  seen  that  the  notice  is  required  to  name 
all  persons  known  to  have  an  adverse  interest,  and  this 
of  course  includes  any  adverse  claim,  whether  admitted 
or  denied,  that  may  have  been  discovered  by  the  exam- 
iner, or  in  any  way  found  to  exist.  Taking  this  into 
account  we  should  construe  the  requirement  in  section 
21,  concerning  the  application,  as  calling  upon  the 
applicant  to  mention  not  merely  outstanding  interests 
which  he  admits,  but  equally  all  claims  of  interest  set 
up  although  denied  by  him.  We  mention  this  here  to 
dispose  of  an  objection  of  detail  urged  by  the  peti- 
tioner, and  we  pass  to  the  general  objection  that,  how- 
ever construed,  the  mode  of  notice  does  not  satisfy  the 
constitution,  either  as  to  persons  residing  within  the 
State  upon  whom  it  is  not  served  or  as  to  persons 
residing  out  of  the  State  and  not  named. 

If  it  does  not  satisfy  the  constitution,  a  judicial 
proceeding  to  clear  titles  against  all  the  world  hardly 
is  possible,  for  the  very  meaning  of  such  a  proceeding 
is  to  get  rid  of  unknown  as  well  as  known  claims, — 
indeed,  certainly  against  the  unknown  may  be  said  to 
be  its  chief  end;  and  unknown  claims  cannot  be  dealt 
with  by  personal  service  upon  the  claimant.  It  seems 
to  have  been  the  impression  of  the  Supreme  Court  of 
Ohio,  in  the  case  most  relied  upon  by  the  petitioner, 
that  such  a  judicial  proceeding  is  impossible  in  this 
country.2  But  we  cannot  bring  ourselves  to  doubt  that 
the  constitution  of  the  United  States  and  of  Massa- 
chusetts, at  least,  permit  it  as  fully  as  did  the  common 

2  State  v.  Guilbert,  56  Ohio  St.  575,  629. 


102  LAND  REGISTRATION  IN  ILLINOIS. 

law.  Prescription  or  a  statute  of  limitations  may  give 
a  title  good  against  the  world,  and  destroy  all  manner 
of  outstanding  claims  without  any  notice  or  judicial 
proceedings  at  all.  Time  and  the  chance  which  it  gives 
the  owner  to  find  out  that  he  is  in  danger  of  losing 
rights  are  due  process  of  law  in  that  case.3  The  same 
result  used  to  follow  upon  proceedings  which,  looked 
at  apart  from  history,  may  be  regarded  as  standing 
half-way  between  statutes  of  limitations  and  true  judg- 
ments in  rem,  and  which  took  much  less  trouble  about 
giving  notice  than  the  statute  before  us.  We  refer  to 
the  effect  of  a  judgment  on  a  writ  of  right  after  the 
mise  joined  and  the  lapse  of  a  year  and  a  day.4  It 
would  have  astonished  John  Adams  to  be  told  that  the 
framers  of  our  constitution  had  put  an  end  to  the 
possibility  of  these  ancient  institutions.  A  somewhat 
similar  statutory  contrivance  of  modern  days  has  been 
held  good.5  Finally,  as  was  pointed  out  by  the  counsel 
for  the  petitioner,  a  proceeding  in  rem  in  the  proper 
sense  of  the  word  might  give  a  clear  title  without  other 
notice  than  a  seizure  of  the  res,  and  an  exhibition  of 
the  warrant  to  those  in  charge.6  The  general  require- 
ment of  advertisement  in  admiralty  cases  is  said  to  be 
due  to  rules  of  court7 

The  prohibition  in  the  fourteenth  amendment  of  the 
United  States  against  a  State  depriving  any  person  of 
his  property  without  due  process  of  law,  and  that  in 
the  twelfth  article  of  the  Massachusetts  bill  of  rights 

s  Wheeler  v.  Jackson,  137  U.  S.  245,  258. 

*  Booth,  Real  Actions,  101,  in  margin;  Fitz.  Abr.  Continual  Claim, 
pi.  7,  Faux  Recovere,  pi.  1;  Y.  B.,  5  ed.,  111.  51,  pi.  60;  and  of  a  fine 
with  proclamations  after  the  same  time  or  by  a  later  statute  after 
five  years.  2  Bl.  Comm.  354.  2  Inst.  510,  518.  St.  18  Ed.  I.  modus 
levandi  fines.  34  Ed.  III.  c.  16.  4  and  5  Hen.  VII.  c.  24.  32  Hen. 
VIII.  c.  36.  * 

B  Turner  v.  New  York,  168  U.  S.  90. 

«  2  Browne,  Civ.  &  Adm.  Law,  398. 

?U.  S.  Adm.  rule  9;  Betts,  Adm.  Practice  (1838),  33,  34,  App.  14. 


SUPREME  COURT  OPINIONS.  103 

refer  to  somewhat  vaguely  determined  criteria  of  justi- 
fication, which  may  be  found  in  ancient  practice,8  or 
which  may  be  found  in  convenience  and  substantial 
justice,  although  the  form  is  new.9  The  prohibitions 
must  be  taken  largely  with  regard  to  substance  rather 
than  to  form,  or  they  are  likely  to  do  more  harm  than 
good.  It  is  not  enough  to  show  a  procedure  to  be 
unconstitutional  to  say  that  we  never  have  heard  of 
it  before.10 

Looked  at  either  from  the  point  of  view  of  history  or 
of  the  necessary  requirements  of  justice,  a  proceeding 
in  rem  dealing  with  a  tangible  res  may  be  instituted 
and  carried  to  judgment  without  personal  service  upon 
claimants  within  the  State  or  notice  by  name  to  those 
outside  of  it,  and  not  encounter  any  provision  of  either 
constitution.  Jurisdiction  is  secured  by  the  power  of 
the  court  over  the  res.  As  we  have  said,  such  a  pro- 
ceeding would  be  impossible  were  this  not  so,  for  it 
hardly  would  do  to  make  a  distinction  between  the 
constitutional  rights  of  claimants  who  were  known 
and  those  who  were  not  known  to  the  plaintiff,  when 
the  proceeding  is  to  bar  all.11  In  Hamilton  v.  Brown, 
161  IT.  S.  256,  a  judgment  of  escheat  was  held  conclusive 
upon  persons  notified  only  by  advertisement  to  all 
persons  interested.  It  is  true  that  the  statute  under 
consideration  required  the  petition  to  name  all  known 
claimants  and  personal  service  to  be  made  on  those  so 
named.  But  that  did  the  plaintiffs  no  good,  as  they 
were  not  named.  So  a  decree  allowing  or  disallow- 

s  Murray  v.  Hoboken  Land  Co.,  18  How.  272,  277. 

»Hurtado  v.  California,  110  U.  S.  516,  528,  531;  Holden  v.  Hardy, 
169  U.  S.  366,  388,  389. 

10  Hurtado  v.  California,  110  U.  S.  516,  537. 

yiiPennoyer  v.  Neff,  95  U.  S.  714,  727;  The  Mary,  9  Cranch,  126, 
W4;  Mankin  v.  Chandler,  2  Brock.  125,  127;  Brown  v.  Levee  Com- 
mission, 50  Miss.  468,  481;  2  Freeman,  Judgments,  4th  ed.,  sections 
606,  611. 


104  LAND  REGISTRATION  IN  ILLINOIS. 

ing  a  will  binds  everybody,  although  the  only 
notice  of  the  proceedings  given  by  a  general  notice 
to  all  persons  interested.  And  in  this  case,  as  in  that 
of  escheat  just  cited,  the  conclusive  effect  of  the  decree 
is  not  to  put  upon  the  ground  that  the  State  has  an 
absolute  power  to  determine  the  persons  to  whom  a 
man's  property  shall  go  at  his  death,  but  upon  the 
characteristics  of  a  proceeding  in  rem.12  Admiralty 
proceedings  need  only  to  be  mentioned  in  this  connec- 
tion, and  further  citation  of  cases  seems  unnecessary. 
Speaking  for  myself,  I  see  no  reason  why  what  we 
have  said  as  to  proceedings  in  rem  in  general  should 
not  apply  to  such  proceedings  concerning  land.  In 
Arndt  v.  Griggs,13  it  is  said  to  be  established  that  "a 
State  has  power  by  statute  to  provide  for  the  adjudi- 
cation of  titles  to  real  estate  within  its  limits  as  against 
non-residents  who  are  brought  into  court  only  by 
publication."  In  Hamilton  v.  Brown,14  it  was  declared 
to  be  within  the  power  of  a  State  "to  provide  for  deter- 
mining and  quieting  the  title  to  real  estate  within  the 
limits  of  the  State  and  within  the  jurisdiction  of  the 
court  after  actual  notice  to  all  known  claimants,  and 
notice  by  publication  to  all  other  persons."  I  doubt 
whether  the  court  will  not  take  the  further  step,  when 
necessary,  and  declare  the  power  of  the  States  to  do 
the  same  thing  after  notice  by  publication  alone.15  But 
in  the  present  case  provision  is  made  for  notice  to  all 
known  claimants  by  the  recorder,  who  is  to  mail  a  copy 
of  the  published  notice  to  every  person  named  therein 
whose  address  is  known  (section  32).  We  shall  state  in 

12  Bonnemort  v.  Gill,  167  Mass.  338,  340.    See  161  U.  S.  263,  274. 
is  134  U.  S.  316,  327. 
1*161  U.  S.  256,  274. 

is  See  Ruling  v.  Kaw  Valley  Railway  Improvement  Co.,  130  U.  S. 
559,  564;  Parker  v.  Overman,  18  How.  137,  140,  141  et  seq. 


SUPREME  COURT  OPINIONS.  105 

a  moment  our  reasons  for  thinking  this  form  of  notice 
constitutional.16 

But  it  is  said  that  this  is  not  a  proceeding  in  rem. 
It  is  certain  that  no  phrase  has  been  more  misused.  In 
the  past  it  has  had  little  more  significance  than  that 
the  right  alleged  to  have  been  violated  was  a  right  in 
rem.  Austin  thinks  it  necessary  to  quote  Liebnitz,  for 
the  sufficiently  obvious  remark  that  every  right  to 
restitution  is  a  right  in  personam.  So  as  to  actions. 
If  the  technical  object  of  the  suit  is  to  establish  a  claim 
against  some  particular  person,  with  a  judgment  which 
generally,  in  theory  at  least,  binds  his  body,  or  to  bar 
some  individual  claim  or  objection,  so  that  only  certain 
persons  are  entitled  to  be  heard  in  defence,  the  action 
is  in  personam,  although  it  may  concern  the  right  to 
or  possession  of  a  tangible  thing.17  If,  on  the  other 
hand,  the  object  is  to  bar  indifferently  all  who  might 
be  minded  to  make  an  objection  of  any  sort  against  the 
rights  sought  to  be  established,  and  if  any  one  in  the 
world  has  a  right  to  be  heard  on  the  strength  of  alleg- 
ing facts  which,  if  true,  show  an  inconsistent  interest, 
the  proceeding  is  in  rem.18  All  proceedings,  like  all 
rights,  are  really  against  persons.  Whether  they  are 
proceedings  or  rights  in  rem  depends  on  the  number 
of  persons  affected.  Hence  the  res  need  be  personified 
and  made  a  party  defendant,  as  happens  with  the  ship 
in  the  admiralty,  it  need  not  even  be  a  tangible  thing 
at  all,  as  sufficiently  appears  by  the  case  of  the  probate 
wills.  Personification  and  naming  the  res  as  defendant 
are  merely  symbols,  not  the  essential  matter.  They  are 
fictions,  conveniently  expressing  the  nature  of  the  proc- 
ess and  the  result, — nothing  more. 

is  See,  further,  Cook  v.  Allen,  2  Mass.  462,  469,  470;  Dascom  v. 
Davis,  5  Met.  335,  340;  Brock  v.  Old  Colony  R.  R.,  146  Mass.  194,  195. 
IT  Mankin  v.  Chandler,  2  Brock.  125, 127. 
is  2  Freeman,  Judgments,  4th  ed.,  606,  ad  fin. 


106  LAND  REGISTRATION  IN  ILLINOIS. 

It  is  true  as  an  historical  fact  that  these  symbols  are 
used  in  admiralty  proceedings,  and  also,  again  merely 
as  an  historical  fact,  that  proceedings  in  rem  have 
been  confined  to  cases  where  certain  classes  of  claims, 
although  of  very  divers  sorts,  for  indemnification  for 
injury,  for  wages,  for  salvage,  etc.,  are  to  be  ascer- 
tained. But  a  ship  is  not  a  person.  It  cannot  do  a 
wrong  or  make  a  contract.  To  say  that  a  ship  has 
committed  a  tort  is  merely  a  shorthand  way  of  saying 
that  you  have  decided  to  deal  with  it  as  if  it  had  com- 
mitted one,  because  some  man  has  committed  one  in 
fact.  There  is  no  in  priori  reason  why  any  other  claim 
should  not  be  enforced  in  the  same  way.  If  a  claim 
for  a  wrong  committed  by  a  master  may  be  enforced 
against  all  interests  in  the  vessel,  there  i»  no  juridical 
objection  to  a  claim  of  title  being  enforced  in  the  same 
way.  The  fact  that  it  is  not  so  enforced  under  existing 
practice  affords  no  test  of  the  powers  of  the  legis- 
lature. The  contrary  view  would  indicate  that  you 
really  believed  the  fiction  that  a  vessel  had  an  inde- 
pendent personality  as  a  fact  behind  the  law.  Further- 
more, naming  the  res  as  defendant,  although  a  con- 
venient way  of  indicating  that  the  proceeding  is 
against  property  alone, — that  is  to  say,  that  it  is  not 
to  establish  an  infinite  personal  liability, — is  not  of  the 
essence.  If,  in  fact,  the  proceeding  is  of  that  sort,  and 
is  to  bar  all  the  world,  it  is  a  proceeding  in  rem. 

Then  as  to  seizure  of  the  res.  It  is  convenient  in  the 
case  of  a  vessel,  in  order  to  secure  its  being  on  hand  to 
abide  judgment,  although,  in  the  case  of  a  suit  against 
a  man,  jurisdiction  is  regarded  as  established  by  ser- 
vice, without  the  need  of  keeping  him  in  prison  to  await 
judgment.  It  is  enough  that  the  personal  service 
shows  that  he  could  have  been  seized  and  imprisoned. 
Seizure,  to  be  sure,  is  said  to  be  notice  to  the  owner.19 

i»  Scott  v.  Sherman,  2  W.  Bl.  977,  979;  Mankin  v.  Chandler,  2 
Brock.  125,  127. 


SUPREME  COURT  OPINIONS.  107 

But  fastening  the  process  or  a  copy  to  the  mast  would 
seem  not  necessarily  to  depend  for  its  effect  upon  the 
continued  custody  of  the  vessel  by  the  marshal.  How- 
ever this  may  be,  when  we  come  to  deal  with  immov- 
ables, there  would  be  no  sense  whatever  in  declaring 
seizure  to  be  a  constitutional  condition  of  the  power 
of  the  legislature  to  make  a  proceeding  against  land 
a  proceeding  in  rem.20  The  land  cannot  escape  from 
the  jurisdiction,  and,  except  as  security  against  escape, 
seizure  is  a  mere  form,  of  no  especial  sanctity  and  of 
much  possible  inconvenience. 

I  do  not  wish  to  ignore  the  fact  that  seizure,  when 
it  means  real  dispossession,  is  another  security  for 
actual  notice.  But  when  it  is  considered  how  purely 
formal  such  an  act  may  be,  and  that  even  adverse 
possession  is  possible  without  ever  coming  to  the 
knowledge  of  a  reasonably  alert  owner,  I  cannot  think 
that  the  presence  or  absence  of  the  form  makes  a  con- 
stitutional difference,  or  rather,  to  express  my  view 
still  more  cautiously,  I  cannot  but  think  that  the 
immediate  recording  of  the  claim  is  entitled  to  equal 
effect  from  a  constitutional  point  of  view.  I  am  free 
to  confess,  however,  that,  with  the  rest  of  my  brethren, 
I  think  that  the  act  ought  to  be  amended  in  the  direc- 
tion of  still  further  precautions  to  secure  actual  notice 
before  a  decree  is  entered,  and  that,  if  it  is  not 
amended,  the  judges  of  the  court  ought  to  do  all  that 
is  in  their  power  to  satisfy  themselves  that  there  has 
been  no  failure  in  this  regard  before  they  admit  a 
title  to  registration. 

The  quotations  which  we  have  made  show  the  intent 
of  the  statute  to  bind  the  land,  and  to  make  the  pro- 
ceedings adverse  to  all  the  world,  even  if  it  were  not 
stated  in  section  35,  or  if  the  amendment  of  1899  did 
not  expressly  provide  that  they  should  be  proceedings 

20  Hamilton  v.  Brown,  161  U.  S.  256,  274.    • 


108  LAND  REGISTRATION  IN  ILLINOIS. 

in  rem.21  Notice  is  to  be  posted  on  the  land,  just  as 
admiralty  process  is  fixed  to  the  mast.  Any  person 
claiming  an  interest  may  appear  and  be  heard 
(section  34). 

But  perhaps  the  classification  of  the  proceeding  is 
not  so  important  as  the  course  of  the  discussion  thus 
far  might  seem  to  imply.  I  have  pursued  that  course 
as  one  which  is  satisfactory  to  my  own  mind ;  but,  for 
the  purpose  of  decision,  a  majority  of  the  court  prefer 
to  assume  that,  in  case  in  which  under  the  consti- 
tutional requirements  of  due  process  of  law  it  hereto- 
fore has  been  necessary  to  give  to  parties  interested 
actual  notice  of  the  pending  proceeding,  by  personal 
service  or  its  equivalent,  in  order  to  render  a  valid 
judgment  against  them,  it  is  not  in  the  power  of  the 
legislature,  by  changing  the  form  of  the  proceedings 
from  an  action  in  personam  to  a  suit  in  rem,  to  avoid 
the  necessity  of  giving  such  a  notice,  and  to  assume 
that,  under  this  statute,  personal  rights  in  property 
are  so  involved,  and  may  be  so  affected,  that  effectual 
notice  and  an  opportunity  to  be  heard  should  be  given 
to  all  claimants  who  are  known,  or  who,  by  reasonable 
effort,  can  be  ascertained. 

It  hardly  would  be  denied  that  the  statute  takes 
great  precautions  to  discover  outstanding  claims,  as 
we  already  have  shown  in  detail,  or  that  notice  by 
publication  is  sufficient  with  regard  to  claimants  out- 
side the  State.  With  regard  to  claimants  living  within 
the  State  and  remaining  undiscovered,  notice  by  publi- 
cation must  suffice,  of  necessity.  As  to  claimants  living 
within  the  State  and  known,  the  question  seems  to 
come  down  to  whether  we  can  say  that  there  is  a  con- 
stitutional difference  between  sending  notice  of  a  suit 
by  a  messenger  and  sending  it  by  the  postoffice,  beside 
publishing  in  a  newspaper,  recording  in  the  registry 

21  St.  1899,  c.  131,  51. 


SUPREME  COURT  OPINIONS.  109 

and  posting  on  the  land.  It  must  be  remembered  that 
there  is  no  constitutional  requirement  that  the  sum- 
mons, even  in  a  personal  action,  shall  be  served  by  an 
officer,  or  that  the  copy  served  shall  be  officially 
attested.  Apart  from  local  practice,  it  may  be  served 
by  an  indifferent  person.  It  may  be  served  on  residents 
by  leaving  a  copy  at  the  last  and  usual  place  of  abode. 
When  we  are  considering  a  proceeding  of  this  kind,  it 
seems  to  us  within  the  power  of  the  legislature  to  say 
that  the  mail  as  it  is  managed  in  Massachusetts  is  a 
sufficient  messenger  to  convey  the  notice,  when  other 
means  of  notifying  the  party,  like  publishing  and  post- 
ing, also  are  required.  We  agree  that  such  an  act  as 
this  is  not  to  be  upheld  without  anxiety.  But  the  dif- 
ference in  degree  between  the  case  at  bar  and  one  in 
which  the  constitutionality  of  the  act  would  be  unques- 
tionable seems  to  us  too  small  to  warrant  a  distinction. 
If  the  statute  is  within  the  power  of  the  legislature,  it 
is  not  for  us  to  criticise  the  wisdom  or  expediency  of 
what  the  legislature  has  done. 

We  do  not  think  it  necessary  to  refer  to  the  elaborate 
collection  of  statutes  presented  by  the  Attorney-Gen- 
eral for  purpose  of  showing  that  the  principle  of  the 
present  act  is  old.  Although  no  question  is  made  on 
that  point,  we  may  mention  that  an  appeal  is  given  to 
the  Superior  Court,  with  the  right  to  claim  a  jury.  In 
our  opinion,  the  main  objection  to  the  act  fails.22 

The  other  objection  to  the  constitutionality  of  the 
statute  is  with  regard  to  the  powers  and  duties  of  the 
recorder  and  assistant  recorder.  It  is  said  that  they 
are  given  judicial  powers  after  the  original  registra- 
tion, although  not  judicial  officers  under  the  constitu- 
tion. The  act  of  registration  is  the  operative  act  to 

22  See  Shepherd  v.  Ware,  46  Minn.  174;  People  v.  Simon,  176  111. 
165;  Short  v.  Caldwell,  155  Mass.  57,  59;  Loring  v.  Hildreth,  170 
Mass.  328. 


110  LAND  REGISTRATION  IN  ILLINOIS. 

convey  title  (section  50),  and  by  the  act  of  1898  the 
assistant  recorder  does  it,  unless  in  doubt  (sections  53, 
55,  57,  58,  61,  62,  63).  It  is  said  that,  as  his  decision 
affects  title,  it  must  be  judicial.  But  here  again  it  is 
necessary  to  use  a  certain  largeness  in  interpreting 
broad  constitutional  provisions.  The  ordinary  business 
of  registration  is  very  nearly  ministerial.  There  is  no 
question  to  be  raised,  or  which  can  be  raised.  If  there 
is  a  question,  either  raised  by  any  party  in  interest  or 
occurring  to  the  assistant  recorder,  it  is  to  be  referred 
to  the  judge  for  decision  (section  53).  But,  whatever 
may  be  thought  of  the  original  act,  by  amendment  even 
the  ordinary  business  is  to  be  done  only  "in  accordance 
with  the  rules  and  instructions  of  the  court."23  Under 
this  amendment  registration  is  the  act  of  the  court. 
The  fact  that  it  may  be  done  by  the  assistant  recorder 
under  general  orders  when  there  is  no  question  is  not 
different  from  the  power  of  the  clerk  to  enter  judgment 
in  cases  ripe  for  judgment  under  a  general  order  or  rule 
of  the  Superior  Court.  It  should  be  observed  that  by 
section  55  the  production  of  the  owner's  duplicate  cer- 
tificate, whenever  any  voluntary  instrument  is  pre- 
sented for  registration,  is  conclusive  authority  from  the 
registered  owner  for  the  entry  of  a  new  certificate  or 
the  making  of  a  memorandum  of  registration,  and  that 
a  registration  procured  by  presenting  a  forged  certifi- 
cate, etc.,  is  void. 

Finally,  it  is  said  that  there  is  no  provision  for  notice 
before  registration  of  transfers  or  dealings  subsequent 
to  the  original  registration.  It  must  be  remembered 
that  at  all  later  stages  no  one  can  have  a  claim  which 
does  not  appear  on  the  face  of  the  registry.  The  only 
rights  are  registered  rights,  and  when  land  is  brought 
into  the  registry  system  there  seems  to  be  nothing  to 
hinder  the  legislature  from  fixing  the  conditions  upon 

as  St.  1899,  c.  131,  §  8. 


SUPREME  COURT  OPINIONS.  Ill 

which,  it  shall  be  held  under  that  system.24  By  section 
45  the  obtaining  of  a  decree  of  registration,  which  is  a 
voluntary  act,  is  an  agreement  running  with  the  land 
that  the  land  shall  be  and  remain  registered  land  and 
subject  to  the  provisions  of  the  act.  Furthermore,  in 
deciding  whether  substantial  justice  is  done,  it  is  to  be 
borne  in  mind  that  ordinary  cases  will  present  no  ques- 
tion at  all.  It  is  contemplated,  as  we  have  said,  that, 
if  there  is  a  question  to  be  discerned,  it  shall  be  referred 
to  the  court,  and,  of  course,  that  the  court  will  order 
notice  to  any  party  interested.  The  act  shows  through- 
out the  intent  that  no  one  shall  be  concluded  without 
having  a  chance  to  be  heard;  and  although  some  of  its 
methods  are  new  to  this  Commonwealth,  we  cannot  say 
that  the  precautions  as  to  notice  are  insufficient  in 
substance  or  form. 
Petition  denied. 

2*  People  v.  Simon,  176  111.  165,  176. 


CHAPTER  VII. 

REGISTRATION  IN  OTHER  COUNTRIES  AND  STATES. 

The  general  principle  of  registration  of  title,  whereby 
a  title,  examined  once  for  all,  is  thereafter  evidenced 
only  by  the  certificate  of  title,  which  is  conclusive  and 
shows  at  all  times  all  claims,  adverse  and  otherwise, 
which  need  be  noticed  by  one  proposing  to  deal  with 
the  land,  has  been  in  continuous  successful  operation 
in  some  parts  of  Europe  for  several  hundred  years.  The 
differences  in  different  localities  are  only  in  details  of 
mechanism.  In  Austria-Hungary  registration  dates 
from  the  twelfth  century.  In  Baden  the  system  dates 
from  1809;  in  Saxony,  from  1843;  and  from  successive 
dates,  as  adopted  from  time  to  time,  it  has  come  into 
use  in  all  or  nearly  all  of  the  German  states,  the  latest, 
Alsace-Lorraine,  beginning  its  use  in  1891.  Registra- 
tion of  title  was  made  universal  in  Austria  in  1811,  in 
Hungary  in  1849,  and  in  Prussia  in  1872. 

The  variety  of  conditions  under  which  the  system  is 
administered  in  continental  Europe  is  well  stated  in 
the  following:1 

"The  particular  examples  collected  in  the  detailed 
report  (accompanying  the  main  report)  include,  for 
instance,  such  great  estates  as  the  ancestral  domains 
of  the  Bohemian  nobility  (among  whom  are  to  be  found 
some  of  the  largest  land  owners  of  Europe),  subject  to 
the  strictest  entails,  carrying  political  privileges  of  the 
highest  importance,  and  especially  registered  in 
immense  separate  volumes  in  the  provincial  capital; 

*  Report  of  C.  Fortescue  Brickdale,  Esq.,  registrar  of  the  land 
registry  (England),  made  to  the  British  government  on  the  system 
of  registration  of  titles  now  in  operation  in  Germany  and  Austria- 
Hungary,  31  American  Law  Review,  827. 

112 


REGISTRATION  IN  OTHER  COUNTRIES,  ETC.          113 

they  also  include  (by  way  of  contrast)  the  tiny  subdi- 
visions of  the  peasant  proprietors  of  the  Rhine  prov- 
inces, where  the  principles  and  practices  of  the  Code 
Napoleon  are  still  deeply  rooted  in  the  customs  and 
feelings  of  the  people.  They  include,  on  the  one  hand, 
specimens  taken  from  the  rapidly  developing  building 
properties  in  the  suburbs  of  Berlin,  with  their  villa 
residences  and  restrictive  covenants,  and,  on  the  other, 
remote  Silesian  manors,  with  their  tenant  farmers, 
antique  rights  of  common  and  commuted  rents,  and 
services  dating  from  feudal  times.  They  show  the 
system  as  applied  to  vast,  featureless  plains,  like  the 
corn-growing  regions  of  Hungary,  to  the  busy  mining 
and  industrial  districts  of  Saxony  and  the  Black  Coun- 
try of  Germany  close  to  the  Russian  frontier,  as  well 
as  to  the  picturesque  Alpine  hamlets  and  pastures, 
with  their  innumerable  independent  right  of  way, 
water  and  other  complicated  easements,  to  be  found  in 
Syria  and  the  Saltzkammergut;  they  pass  from  the 
intricacies  of  cellars  and  flats,  courts  and  passages,  of 
the  Jews'  quarter  of  the  City  of  Prague,  to  the  simple 
conditions  of  a  quiet  agricultural  district  in  Branden- 
burg; from  mortgages  on  first-class  properties  involv- 
ing hundreds  of  thousands  of  pounds,  and  subject  to 
the  most  complicated  subsequent  dealings  by  way  of 
transfer,  alteration,  subdivision  and  collateral  security, 
down  to  rows  of  petty  charges  on  diminutive  shares  in 
an  inconsiderable  estate  from  great  cities,  where  values 
are  measured  almost  by  the  square  inch,  to  trackless 
wastes  and  bare  mountains  of  scarcely  any  value  at 
all.  Over  the  wThole  of  this  vast  and  diversified  tract, 
embracing  an  area  more  than  seven  times  the  size  of 
England  and  Wales,  systems  of  registration  of  title 
differing  in  no  essential  particular  from  the  systems 
established  under  the  Torrens  Acts  in  Australia,  and 
partially  established  under  the  Land  Registry  Acts  in 


114  LAND  REGISTRATION  IN  ILLINOIS. 

England  and  Ireland,  having  been  in  almost  universal 
operation  for  a  considerable  period,  amounting  in  the 
principal  Austrian  provinces  to  upwards  of  eighty 
years,  and  in  certain  places  dating  from  a  much  more 
remote  period." 

The  success  of  the  system  in  Australia  is  most  nota- 
ble. The  first  act,  passed  in  1858  in  South  Australia, 
was  drafted  by  Sir  Robert  Richard  Torrens.  All  other 
acts  in  English-speaking  countries  follow  that  act  in 
general  outlines,  and  the  method  is  commonly  known 
as  the  Torrens  system.  In  1861  it  was  adopted  in 
Queensland,  Tasmania  and  Victoria,  and  in  1862  in 
New  South  Wales.  New  Zealand  followed  in  1870,  and 
Western  Australia  in  1874,  since  which  date  it  has 
come  into  general  use  throughout  all  of  the  British 
Australian  colonies.  Its  unquestioned  success  in  the 
Australian  colonies  has  led  to  its  use  in  the  greater 
part  of  Canada  and  the  other  British  possessions  in 
North  America,  British  Columbia  having  adopted  it  in 
1870,  and  Manitoba  and  Ontario  in  1885.  The  system 
is  in  use  also  in  a  part  of  Switzerland  and  in  Tunis. 

The  history  of  the  system  in  England  is  instructive. 
Three  different  laws  have  sought  to  give  to  English 
land  owners  the  benefits  of  registration  of  title:  The 
Westbury  Act  in  1862,  the  Cairns  Act  in  1875,  and  the 
present  Land  Transfer  Act  of  1897.  The  first  two 
furnished  but  partial  relief,  registration  being  optional 
and  opposition  constant  from  the  legal  profession.  The 
act  of  1897  establishes  compulsory  registration  of  title. 
It  is  not  by  its  terms  operative  at  once  upon  all  land, 
but  the  law  is  made  operative  upon  all  land  in  such 
county  or  part  of  a  county  named  from  time  to  time  by 
order  in  council,  and,  after  such  order,  no  owner  is  per- 
mitted to  sell  his  land  without  previous  registration  of 
title.  A  large  part  of  the  land  in  London  is  now  under 
the  act,  and  by  May  1,  1901,  no  title  in  the  city  or 


REGISTRATION  IN  OTHER  COUNTRIES,  ETC.          115 

county  of  London  can  be  transferred  unless  registered. 
A  similar  policy  is  likely  to  be  soon  pursued  by  the 
council  with  reference  to  lands  in  the  other  counties. 
Compulsory  registration  is  thus  proceeding  as  rapidly 
as  the  necessary  examination  of  titles  can  be  made  by 
the  registrar  and  his  officials.  A  large  number  of 
properties  have  already  been  placed  upon  the  register 
without  any  yet  reported  loss  to  adverse  claimants, 
and  the  certificates  of  title  meet  with  general  satisfac- 
tion. 

The  order  now  in  force  as  to  lands  in  the  County  of 
London  is  as  follows: 

ORDER  IN  COUNCIL. 

At  the  court  at  Windsor,  the  28th  day  of  November, 
1899.  Present  the  Queen's  Most  Excellent  Majesty,  in 
Council. 

Whereas,  it  is  expedient  as  regards  certain  portions 
of  the  County  of  London  that  the  operation  of  the  order 
in  council,  dated  the  eighteenth  of  July,  one  thou- 
sand eight  hundred  and  ninety-eight,  and  made  pur- 
suant to  the  Land  Transfer  Act,  1897,  should  be  post- 
poned; 

Now,  therefore,  Her  Majesty  is  pleased,  by  and  with 
the  advice  of  her  Privy  Council,  to  order  and  declare 
that  as  regards  the  hereunder  mentioned  portions  of 
the  said  county  the  said  order  is  to  be  read  and  to  take 
effect  as  if  the  schedule  therein  had  been  expressed  as 
follows : 

Days  on  and   after  which. 

PORTIONS   OF   THE   COUNTY.  registration    of    title    to 

land    Is    to    be    compul- 
sory on  sale. 

The  parishes  of  Christ  Church 
(Southwark), 

St.  George  the  Martyr,  Camber- 
well  Horselydown. 

Lambeth,  Bermondsey,  Newing- 
ton,  Rotherhithe. 


116  LAND  REGISTRATION  IN  ILLINOIS. 

Saint  Olave  and  Saint  Thomas, 
Saint  Saviour  and  the  detached  part 
of  the  Parish  of  Streatham,  situate 
between  the  parishes  of  Lambeth 
and  Camberwell.  1  January,  1900. 

The  parishes  of  Battersea,  Clap- 
ham,  Putney,  Tooting  Graveney, 
Wandsworth  and  the  remainder 
of  the  Parish  of  Streatham.  1  May,  1900. 

The  remainder  of  the  county, 
except  the  City  of  London.  1  November,  1900. 

The  City  of  London.  1  May,  1901. 

The  present  buildings  in  London  occupied  as  the 
offices  of  the  registrar,  having  become  inadequate  to 
the  wants  of  the  land  registration  department,  by  the 
terms  of  a  recent  act  of  parliament,2  the  sum  of  f  1,325,- 
000  has  been  appropriated  for  the  acquisition  of  a  large 
tract  of  land  in  Lincoln's-inn-fields  and  the  erection  of  a 
new  building  suitable  for  the  enlarged  needs  of  the  de- 
partment. The  new  quarters  are  in  course  of  progress, 
and  when  completed  will  provide  sufficient  office  space 
for  the  registration  of  all  land  titles  in  England. 

Four  of  the  States  in  the  United  States  have  adopted 
a  Torrens  law,  each  with  registration  optional  to  the 
owner.  These  are,  in  order  of  time,  Illinois,  in  1895 
and  1897,  Ohio  in  1896,  California  in  1897  and  Massa- 
chusetts in  1898. 

What  has  been  done  in  Illinois  is  stated  in  a  pre- 
ceding chapter.  The  Ohio  act  was  held  invalid  by  the 
Supreme  Court  of  that  State  in  the  case  of  State  v. 
Guilbert.3  The  California  law  has  not  yet  received 
judicial  construction. 

Agitation  upon  the  subject  of  land  transfer  in  Massa- 
chusetts was  formally  begun  in  1891,  by  a  discussion 

2  Land  Registry   (New  Buildings)  Act,  1900. 
s  56  Ohio  St.  575. 


REGISTRATION  IN  OTHER  COUNTRIES,  ETC.          117 

of  the  Torrens  system  in  the  inaugural  address  of  the 
late  Governor  Russell,  and  his  message  to  the  legisla- 
ture, dated  February  17,  1891,  in  which  he  strongly 
recommended  the  adoption  of  registration  of  titles  a» 
follows: 

"In  my  inaugural  address  I  referred  to  the  fact  that 
the  subject  of  a  thorough  reform  in  our  system  of  land 
registration  and  transfer  would  be  brought  before 
you,  and  commended  the  matter  to  your  serious  con- 
sideration. Since  that  time  public-spirited  citizens  of 
various  business  organizations  have  been  manifesting 
an  interest  in  this  question,  and  through  the  press  and 
otherwise  it  is  coming  prominently  before  the  people 
for  discussion.  In  view  of  the  great  benefits  which  I 
believe  can  be  realized  by  the  adoption  of  the  new 
methods,  I  deem  it  proper  to  bring  the  matter  specially 
and  prominently  to  your  attention. 

"I  believe  that  the  Australian  system  of  land  regis- 
tration and  transfer,  more  commonly  referred  to,  from 
the  name  of  its  originator,  as  the  Torrens  system,  is  the 
longest  step  that  has  yet  been  taken  anywhere  towards 
that  freedom,  security  and  cheapness  of  land  transfer 
which  is  conceded  to  be  so  desirable  in  the  interest  of 
the  people.  Our  citizens  demand  the  enactment  of  the 
best  legislation  that  can  be  devised,  whether  originated 
here,  or  elsewhere,  and,  while  another  country,  whose 
conditions  are  similar  to  our  own,  has  gained  the  credit 
of  first  adopting  the  admirable  and  simple  plan  of  land 
transfer  which  I  now  call  to  your  attention,  we  can 
yet  be  the  first  among  the  States  of  the  Union  to  place 
this  legislation  upon  our  statute  book  and  to  lead  the 
way  in  its  adoption  by  the  American  people,  as  we  have 
already  done  in  the  case  of  the  Australian  ballot.  The 
universal  favor  with  which  this  latter  system  has  been 
received  by  our  people  should  at  least  remove  any 


118  LAND  REGISTRATION  IN  ILLINOIS. 

prejudice  against  following  the  legislation  of  the  same 
country  in  another  respect. 

"The  need  of  some  new  system  of  land  transfer  is 
shown  by  the  growing  public  dissatisfaction  caused  by 
the  delays  and  the  expense  attending  our  present  sys- 
tem of  registration  of  deeds.  That  system  has  existed 
in  this  Commonwealth  for  a  little  more  than  two 
hundred  and  forty  years.  In  former  days,  when  our 
population  was  smaller,  it  apparently  satisfied  the 
popular  demand;  but,  with  increase  of  population,  it 
has  become  less  serviceable.  Our  people  are  now 
largely  concentrated  in  cities  and  populous  towns.  The 
last  national  census  shows  that  forty-seven  cities  and 
towns,  having  each  more  than  eight  thousand  inhabi- 
tants, contain  seventy  per  cent,  of  our  whole  popula- 
tion. The  density  of  the  population,  with  the  greater 
subdivision  of  land  and  increase  of  real  estate  transac- 
tions which  it  involves,  is  reflected  in  the  mass  of  the 
records  in  our  registries  of  deeds.  The  four  containing 
the  largest  number  of  volumes  are  those  of  the  Middle- 
sex south  District,  of  Suffolk  county,  of  the  Worcester 
district  and  of  the  Essex  south  district.  These  contain 
respectively  at  the  present  time  2,022,  1,979,  1,355  and 
1,300  volumes.  The  increase  in  the  number  of  volumes 
in  three  of  these  registries  during  the  period  of  thirty 
years,  from  the  end  of  the  year  1860  to  the  end  of  the 
year  1890,  was  as  follows:  In  the  Suffolk  registry, 
from  790  to  1,974  volumes,  an  increase  of  150  per  cent. ; 
in  the  Middlesex  south  district  registry,  from  872  to 
2,014  volumes,  an  increase  of  131  per  cent.,  and  in  the 
Essex  south  district  registry,  from  617  to  1,297  vol- 
umes, an  increase  of  110  per  cent.  Middlesex  south 
registry  now  contains  2,810  volumes;  Suffolk,  2,677; 
Worcester  district,  1,653,  and  Essex  south  district, 
1,606. 

"In  the  historical  pamphlet  written  by  John  T.  Has- 


REGISTRATION  IN  OTHER  COUNTRIES,  ETC.          119 

sam,  A.  M.,  on  the  registers  of  deeds  for  the  County  of 
Suffolk,  being  a  part  of  the  proceedings  of  the  Massa- 
chusetts Historical  Society  for  March,  1900,  the  author 
says:  'The  great  increase  in  the  bulk  of  the  records  in 
the  Suffolk  registry  of  deeds  can  be  best  comprehended 
by  bearing  in  mind  that  nineteen  books  contained  all 
the  deeds  and  other  instruments  left  for  record  from 
the  first  settlement  of  the  country  down  to  the  year 
1700.  On  January  1,  1800,  the  number  had  risen  to 
193;  on  January  1,  1850,  there  were  606  books  on  the 
shelves,  and  on  January  1,  1875,  1,250  of  them;  on 
January  1, 1900,  they  had  increased  to  2,656  in  number. 
So  that  there  have  been  added  in  the  last  twenty-five 
years  more  books  than  had  been  filled  during  the  entire 
period  that  had  preceded  it.  These  are  huge  folio 
manuscript  volumes,  containing,  most  of  them,  640 
pages  each.  When  the  present  register  entered  upon 
the  duties  of  his  office  there  were  1,029  volumes  in  the 
registry,  so  that  he  has  attested  as  many  volumes  of 
the  records  as  all  his  predecessors  put  together  and 
half  as  many  more  besides.' 

"These  figures  indicate  such  a  rapid  growth  in  the 
mass  of  the  records  that  at  no  distant  day  even  the 
question  of  providing  room  for  the  records  will  be  a 
matter  of  serious  concern.  But  we  are  already  met  by 
the  more  serious  difficulty  that  the  present  mass  of 
records  is  so  great  that  much  time  and  labor  must  be 
spent  in  searches  in  order  to  ascertain  the  transactions 
which  affect  the  title  to  any  piece  of  land.  This  causes 
delay  and  expense  in  completing  transfers,  even  if  the 
most  complete  methods  of  indexing  should  be 
employed,  so  as  to  reduce  to  a  minimum  the  time 
required  in  searching  the  records — and  our  present 
methods  are  by  no  means  perfect.  The  delay  and 
expense  attending  the  present  system  form  a  serious 
tax  upon  purchasers  and  mortgagors  of  land,  which 


120  LAND  REGISTRATION  IN  ILLINOIS. 

bears  with  special  weight  upon  owners  of  small  estates. 
"The  first  point  which  should  be  noted  in  connection 
with  the  Torrens  system  is  that  its  use  is  optional  and 
not  compulsory;  existing  methods  of  transfer  can  be 
continued  precisely  as  at  present.  It  remains  entirely 
within  the  option  of  every  land  owner  whether  he  will 
avail  himself  of  the  privileges  offered  by  the  new  sys- 
tem or  not,  and,  therefore,  no  one  loses  any  right  which 
he  now  possesses.  The  new  method  must  secure  sup- 
port from  the  public  not  through  compulsory  legisla- 
tion, but  through  the  greater  advantages  which  it 
offers. 

"The  contrasts  between  our  present  system  of  regis- 
tration of  deeds  and  the  Torrens  system  of  registration 
of  titles  are  very  marked.  Under  our  system  title  to 
land  depends  not  only  upon  instruments  recorded  in 
the  registry  of  deeds,  but  also  upon  facts  and  proceed- 
ings which  lie  outside  of  those  records.  There  is  a 
constant  increase  in  the  mass  of  records  of  deeds  and 
of  proceedings  affecting  titles  to  land,  which  makes 
the  work  of  examination  a  constantly  growing  burden. 
If  any  man's  title  to  a  piece  of  land  is  questioned  or 
attacked  by  any  particular  person  the  Commonwealth 
has  provided  courts  with  appropriate  jurisdiction  in 
which  the  owner  can  have  his  rights  ascertained  and 
established  as  against  that  person.  But  it  has  failed  to 
provide  any  method  by  which  one  can  have  his  title 
ascertained  and  established  as  against  all  the  world. 
Under  our  practice  a  new  examination  of  the  title  is 
usually  made  upon  each  sale  or  mortgage  of  a  piece  of 
land,  in  spite  of  the  fact  that  sufficient  examinations 
may  have  been  made  in  former  transactions.  These 
repeated  re-examinations,  generally  needless,  not  only 
cause  useless  expense,  but  delays  which  often  involve 
a  serious  loss. 


REGISTRATION  IN  OTHER  COUNTRIES,  ETC.  121 

"Under  the  Torrens  system  an  official  examination  of 
title  is  substituted  for  an  unofficial  one,  and  the  result 
when  once  sufficiently  ascertained  is  given  conclusive 
effect  in  favor  of  the  owner,  and  his  title  is  made  per- 
fect against  all  the  world.  In  effect,  under  the  Torrens 
system,  the  State  provides  a  proper  court  in  which  any 
one  can  have  his  rights  in  relation  to  a  piece  of  land 
declared  and  established,  not  only  as  against  particular 
persons  who  may  have  an  adverse  interest  upon  special 
notice  to  them,  but  also  as  against  everybody.  The 
principle  of  basing  decrees  upon  general  notice  to  all 
persons  interested  already  prevails  in  our  probate  law. 
Laws  providing  for  the  removal  of  clouds  upon  title  to 
land,  after  general  notice  to  all  unknown  defendants, 
exist  in  many  States  of  the  Union,  and  the  validity  of 
decrees  made  under  such  laws  has  been  established  by 
decisions  of  the  Supreme  Court  of  the  United  States. 

"The  contrasts  in  practical  effect  between  the  two 
systems  are,  therefore,  very  great.  Under  the  system 
of  registration  of  deeds,  we  have  needless  expense  from 
repeated  re-examinations,  loss  from  delays,  and  possi- 
ble insecurity  arising  from  the  fact  that  title  depends 
not  only  upon  the  records,  but  also  upon  facts  outside 
of  the  records  and  not  disclosed  by  them.  Under  the 
Torrens  system,  the  title  is  examined  once  for  all,  and 
there  is  no  needless  re-examination;  as  all  subsequent 
acts  and  proceedings  must  be  brought  one  by  one  to 
the  registrar  to  be  noted,  the  state  of  the  title  can  be 
ascertained  at  any  time  by  simple  inspection  of  the 
certificate  on  record.  Therefore,  with  the  added 
advantage  of  great  simplification  of  the  forms  of  legal 
instruments,  transfers  can  be  made  quickly,  easily  and 
at  small  expense;  and,  further,  there  is  absolute 
security  in  the  possession  of  the  premises  bought, 
resulting  from  the  indefeasibility  given  to  the  certifi- 
cate of  title  issued  by  the  State.  The  result  is  that 


122  LAND  REGISTRATION  IN  ILLINOIS. 

under  the  Torrens  system  real  estate  can  be  transferred 
or  pledged  for  loans  with  almost  as  much  ease  as  stock 
in  corporations. 

"A  further  feature  of  the  system  is  worthy  of  notice. 
When  land  is  first  registered  and  a  certificate  of  title  is 
issued,  or  when  it  passes  by  will  or  descent  on  the  death 
of  an  owner,  the  applicant,  devisee  or  heir  is  required  to 
pay  a  small  percentage  of  the  value  of  the  land,  gen- 
erally about  one-fifth  of  one  per  cent.,  into  the  public 
treasury.  The  sums  so  paid  form  an  'assurance  fund' 
which  is  held  for  the  payment  of  indemnity  to  any  per- 
son who  may  have  had  some  claim  upon,  or  interest  in, 
land  admitted  to  registration,  and  who  failed  to  receive 
notice  of  the  application,  or  for  other  sufficient  cause 
did  not  assert  his  claim.  Under  our  system,  on  the 
other  hand,  a  purchaser  may  have  paid  full  value  for 
his  land,  yet  if  any  outstanding  claim  or  interest  is 
overlooked,  he  is  obliged  to  make  further  payment  and 
may  be  remitted  for  his  remedy  to  a  suit  upon  cove- 
nants which  have  no  practical  value. 

"Again,  technical  claims  are  sometimes  passed  over 
by  one  attorney  as  of  no  consequence,  but  by  subse- 
quent requirement  of  some  other  attorney,  who  thinks 
them  of  importance,  the  owner  may  be  subjected  to 
delay  and  expense  in  obtaining  a  release. 

"Such  being,  in  brief,  the  features  of  the  Torrens  sys- 
tem as  contrasted  with  that  which  we  now  employ, 
argument  seems  almost  superfluous  in  support  of  the 
advisability  of  adopting  it.  While  a  system  which 
gives  absolute  security  of  title  and  makes  transfers 
easy,  quick  and  inexpensive,  tends  to  make  all  land 
more  valuable,  its  benefits  will  be  especially  felt  by  two 
great  classes  of  our  people, — the  small  land  owners 
and  the  borrowers  upon  mortgage.  Widely  distributed 
proprietorship  of  land  and  the  ownership  by  the  people, 
to  the  greatest  possible  extent,  of  the  homes  in  which 


REGISTRATION  IN  OTHER  COUNTRIES,  ETC.          123 

they  live,  are  so  obviously  desirable  that  I  need  not 
dwell  upon  them.  It  is  evident  that  the  masses  of  the 
people  are  more  injuriously  affected  by  the  insecurity 
and  expense  connected  with  our  present  system  than 
the  rich;  the  smaller  the  piece  of  real  estate,  the  greater 
is  the  proportionate  expense  of  transferring  it.  Under 
the  Torrens  system,  the  expenses  of  transfer  are  based 
upon  a  fixed  percentage  of  the  value  of  the  estate,  so 
that  a  small  estate  is  not  subjected  to  a  greater  propor- 
tionate charge  than  a  large  one.  Then,  too,  ease  and 
cheapness  of  transfer  are  of  more  consequence  to  a  man 
whose  whole  property  is  invested  in  a  small  piece  of 
real  estate  than  to  the  large  land  owner,  as  it  is  more 
important  to  the  former  to  be  able  easily  to  dispose  of 
his  property  to  meet  any  sudden  exigency. 

"The  convenience  and  relief  afforded  by  this  new 
system  to  all  who  borrow  upon  mortgage  will  be  very 
great.  The  facility  of  raising  money  easily  and  cheaply 
upon  landed  security  is  of  great  consequence  to  the 
prosperity  and  development  of  a  community.  By 
abolishing  the  tax  formerly  imposed  upon  mort- 
gages, our  State  has  already  relieved  borrowers 
of  one  unjust  and  oppressive  burden,  to  the  great 
advantage  of  the  public,  and  the  additional  step  now 
proposed  will  confer  further  benefit  in  the  same  direc- 
tion. The  power  of  readily  pledging  real  estate  will 
also  prove  of  great  importance  to  the  business  com- 
munity. At  present  the  delays  involved  in  an  examina- 
tion of  title  often  prevent  a  business  man  from  obtain- 
ing a  needed  advance  to  meet  a  sudden  stringency  in 
the  money  market.  At  times  when  loans  are  con- 
tracted and  credit  is  shaken  it  would  be  of  great  benefit 
to  business  if  all  the  real  estate  of  the  community,  pos- 
sessing, as  it  does,  greater  stability  of  value  than  any- 
thing else,  could  be  as  immediately  available  as  a 


124  LAND  REGISTRATION  IN  ILLINOIS. 

means  of  raising  money  as  stocks  of  goods  or  other 
personal  property." 

After  the  consideration  of  several  bills  relating  to 
the  subject,  in  1898  the  present  law  was  enacted.5  This 
act  went  into  effect  October  1,  1898,  and  the  court  of 
land  registration,  which  exercises  supervision  over  the 
recorder  (or  registrar)  and  his  assistants,  who  are  the 
recorders  of  deeds  in  the  several  counties  of  the  State, 
was  opened  for  business  on  October  14,  1898.  The 
validity  of  the  act  was  before  the  Supreme  Court  of 
Massachusetts  in  Tyler  v.  Judges  of  the  Court  of  Regis- 
tration,6 and  there  held  valid  and  constitutional.  Upon 
an  attempted  review  of  the  case  in  the  Supreme  Court 
of  the  United  States7  it  was  found  that  no  federal  ques- 
tion was  involved,  and  the  writ  of  error  was,  therefore, 
dismissed  for  want  of  jurisdiction. 

B  Mass.  Acts  of  1898,  ch.  562. 

«175  Mass.  71. 

i  Tyler  v.  Judges  of  Court  of  Registration,  179  U.  S.  405. 


CHAPTER  VIII. 

CIRCULAR  LETTERS  REGARDING  OPERATION  OF 
TORRENS  LAW  IN  COOK  COUNTY. 

April  15, 1900. 
Dear  Sir: — 

At  the  regular  meeting  of  the  Chicago  Real  Estate 
Board,  February  7,  1900,  the  following  resolution  was 
passed : 

"Resolved,  That  we  approve  of  the  Torrens  Law  as 
now  in  operation  in  this  County,  and  direct  the  Tor- 
rens Committee  to  take,  from  time  to  time,  without 
expense  to  this  Board,  all  steps  necessary  to  conserve 
the  interests  and  secure  the  public  use  of  that  law; 
and  be  it  further 

"Resolved,  That  Francis  B.  Peabody  and  John  S. 
Miller  be  added  to- the  Committee." 

The  Torrens  land  title  law  has  been  in  operation  in 
Cook  County,  111.,  since  February,  1899.  During  this 
period  property  valued  at  over  $1,100,000.00  has  been 
registered,  on  which  are  mortgage  liens  amounting  to 
upwards  of  $180,000.00. 

A  title  registered  under  the  Torrens  system  can  be 
dealt  with  more  safely,  quickly  and  inexpensively  than 
under  the  old  system.  The  expense  of  the  first  regis- 
tration, in  most  cases  about  $24.00,  is  not  equal  to  the 
cost  of  an  abstract  since  the  Chicago  fire,  if  there  have 
been  many  transfers;  and  the  cost  of  each  subsequent 
transfer  under  the  Torrens  system,  $3.00,  is  much  less 
than  the  expense  of  a  continuance  of  abstract  and 
examination  of  title. 

When  the  title  is  once  registered,  a  sale  or  mortgage 
loan  can  generally  be  closed  within  a  few  hours. 

125 


126  LAND  REGISTRATION  IN  ILLINOIS. 

If  desired,  surety  bonds  upon  registered  titles  under 
the  Torrens  Law,  can  be  obtained  at  a  reasonable  cost, 
at  any  time  after  the  issuance  of  the  certificate,  from 
the  American  Surety  Company,  a  corporation  with 
assets  of  over  five  million  dollars, 

Sales  and  mortgages,  thus  quickly  closed,  secure 
owners  from  the  danger  of  unnecessary  delay  in  wait- 
ing for  an  abstract,  or  its  examination,  or  complica- 
tions arising  from  illness,  death  or  absence  of  any 
party  interested. 

Owners  of  registered  titles  are  enabled  to  sell  or 
mortgage  their  property  without  annoying  delays  or 
difficulties.  It  is  apparent  that  they  appreciate  the 
benefits  of  this  law. 

In  promoting  this  reform,  the  Chicago  Real  Estate 
Board  has  spent  many  thousands  of  dollars,  and 
devoted  its  unremitting  efforts  for  over  NINE  YEARS. 

The  Torrens  system,  was  first  introduced  to  the 
Illinois  Legislature  in  1891.  Through  the  influence  of 
the  Board,  in  1897,  the  present  law  was  passed.  This 
law  has  since  been  declared  CONSTITUTIONAL  and 
VALID  by  the  SUPREME  COURT  of  ILLINOIS. 

We  respectfully  call  the  attention  of  all  property 
owners  to  this  law  and  its  advantages,  and  urge  the 
registration  of  titles,  believing  that  the  saving  of  time 
and  of  money,  together  with  the  security  afforded  by 
registered  title,  will  be  a  boon  to  all  property  owners. 

The  facility  of  transfer  and  safeguards  obtained 
through  this  law  will  add  to  the  value  of  the  land. 

The  law  is  of  special  value  to  smaller  property  hold- 
ers, to  whom  the  present  system  is  a  source  of  never- 
ending  and  heavy  expense. 

Registration  blanks  and  general  information  regard- 
ing the  Torrens  Law  can  be  obtained  at  the  office  of  the 
Registrar  of  Titles  of  Cook  County,  Room  320,  County 


CIRCULAR  LETTERS  REGARDING  TORRENS  LAW.      127 


Building.    Inquiries  by  mail  will  receive  prompt  reply. 
Respectfully  yours, 

Louis  A.  Seeberger, 
William  A.  Bond, 
Dunlap  Smith, 
Willis  G.  Jackson, 
Francis  B.  Peabody, 
John  S.  Miller, 
Eugene  H.  Fishburn, 
Josiah  L.  Lombard, 
Joseph  Donnersberger, 
Henry  S.  Dietrich, 
C.  L.  Hammond, 


The 

Torrens 

Committee 
of  the 
Chicago 
Real 

Estate 
Board. 


PEABODY,   HOUGHTELING   &  CO., 

164  DEARBORN  STEEET. 

CABLE  ADDRESS, 
"HOTJGHT,  CHICAGO." 

Chicago,  December  28, 1899. 
Louis  A.  Seeberger,  Esq., 

Chairman  Torrens  Committee, 

Chicago  Eeal  Estate  Board,  City. 
Dear  Sir: 

Mr.  Sheldon,  Official  Examiner  of  Titles  under  the 
Torrens  Law,  has  asked  me  to  say  something  to  you  in 
regard  to  my  experience  under  the  law  and  my  opinion 
of  its  practical  working,  which  I  am  glad  to  do. 

Fortunately,  the  Supreme  Court,  after  hearing  argu- 
ments of  very  able  counsel  upon  all  the  material  fea- 
tures of  the  law,  sustained  its  constitutionality,  so  that 
the  public  mind  is  now  at  rest  as  to  validity  of  the  law. 

The  practical  working  of  the  law  has  proven  so  sim- 
ple, expeditious  and  inexpensive  that  it  is  growing  in 
popular  favor,  and  when  the  public  shall  have  become 
quite  familiar  with  the  system  I  believe  it  will  come 
into  very  extensive  use. 


128  LAND  REGISTRATION  IN  ILLINOIS. 

My  firm  accepts  the  Registrar's  certificates  of  title 
without  further  guaranty,  whenever   offered    in    our 
mortgage  loans,  and  are  glad  to  get  them. 
Yours  truly, 

(Signed)  FRANCIS  B.  PEABODY. 


CHAPTER  IX. 

REGISTRATION  OF  TITLE  LITERATURE. 
Periodical  Articles,  Addresses,  etc. 

Registration  of  Title. 

Land  Reforms.  Duke  of  Argyle.  Contemporary 
Review.  April,  '85. 

Question  of  Land.  G.  S.  Lefevre.  Nineteenth  Cen- 
tury. October,  '85. 

Transfer  of  Land.  H.  W.  Elphinstone.  Law  Quar- 
terly Review.  January,  '86. 

An  American  View  of  the  English  Land  Problem. 
J.  Swann.  National  Review.  January,  '86. 

The  Laws  Relating  to  Land.  J.  F.  Stephen.  National 
Review.  February,  '86. 

Free  Land.  Lord  Hobhouse.  Contemporary  Review. 
February-March,  '86. 

Registration  of  Title  to  Land.  Westminster  Review. 
July,  '86. 

Registration  or  Simplification  of  Title.  H.  Green- 
wood, 6  Law  Quart.  Rev.,  144. 

Compulsory  Registration  of  Titles.  H.  W.  Challis,  6 
Law  Quart.  Rev.,  157. 

Forged  Certificates  of  Title.  11  Canadian  Law  Times, 
127. 

Forged  Transfers.  J.  R.  Adams,  8  Law  Quart.  Rev., 
151. 

Registration  of  Title  in  Ireland.    93  Law  Times,  51. 

Registration  of  Title  in  Ireland.    92  Law  Times,  106. 

Record  of  Title  to  Land.  H.  W.  Chaplin,  6  Harv.  L. 
Rev.,  302. 

Registration  of  Title  in  Ireland.  C.  F.  Brickdale,  7 
Law  Quart.  Rev.,  184. 

9  129 


130  LAND  REGISTRATION  IN  ILLINOIS. 

The  supposed  collusiveness  of  a  land  transfer  cer- 
tificate under  the  Torrens  system.  27  Am.  L.  Rev.,  89. 

Reply  to  Criticisms  of  the  Torrens  System.  7  Har. 
L.  Rev.,  24. 

Registration  of  Guaranteed  Title.  31  Solicitors' 
Journal  and  Rep.,  104. 

Dealing  With  Registered  Land.  35  Solicitors'  Jour- 
nal and  Rep.,  291. 

Thoughts  on  Registration  of  Title.  28  Solicitors' 
Journal  and  Rep.,  627. 

Registration  of  Title  to  Land.  Jos.  H.  Beale,  6  Harv. 
L.  Rev.,  369. 

Registration  Bill.    55  Just,  of  Peace,  83. 

Registration  of  Title.  37  Solicitors'  Journal  and 
Rep.,  795,  797,  801,  802. 

Land  Transfer.  Australian  System.  B.  G.  Schley, 
32  Cent.  L.  J.,  160. 

Land  Transfer  Bill  of  1888.    85  Law  Times,  32. 

Land  Transfer  Bill  of  1889.  H.  M.  Humphrey,  5  Law 
Quart.  Rev.,  275. 

Same.    86  Law  Times,  423,  430,  445,  480. 

Same.    24  Law  Journal,  178. 

Land  Transfer  Bill.  32  Sol.  J.  &  Rep.,  3,  285,  301, 
318,  365,  444;  33  id.,  411,  435. 

The  Proposed  Land  Transfer.  A.  Rumsey,  12  Law. 
Mag.  &  Rev.  (4th  S.),  361. 

Land  Transfer  Bill,  1887.  A.  Robertson,  13  Law 
Mag.  &  Rev.  (4th  S.),  85, 155. 

Land  Transfer  Bill,  Exit  of.    33  Sol.  J.  &  Rep.,  585. 

Solicitors  and  Land  Transfer.    34  Sol.  J.  &  Rep.,  91. 

Australian  Land  Transfer.  H.  Chaplin,  J.  Hassam, 
4  Harv.  L.  B.,  271,  280. 

Same.    J.  Lowman,  25  W.  L.  Bui.,  209. 

Land  Transfer.    H.  B.  Hurd,  25  Am.  L.  Rev.,  367. 

Land  Transfer  Reform.    28  Can.  Law  Journal,  35. 


REGISTRATION  OF  TITLE  LITERATURE.  131 

Third  Reading  of  Land  Transfer  Bill.  33  Sol.  J.  & 
Rep.,  555;  24  Law  Jour.,  389. 

Land  Transfer  Reform.  J.  W.  Jenks,  2  Annals  Am. 
Acad.,  48. 

Land  Transfer  and  Registration.  W.  D.  Turner,  25 
Am.  Law  Rev.,  755,  806. 

Land  Transfer.    F.  V.  Balch,  6  Harv.  L.  R.,  410. 

Land  Transfer  Bill.  Action  of  the  Profession.  33 
Sol.  J.  &  Rep.,  279;  37  id.,  773. 

Land  Transfer  Bill.  33  Sol.  J.  &  Rep.,  264;  34  id., 
311. 

Land  Transfer  Bill.  Sir  Henry  James,  on  33  Sol.  J. 
&  Rep.,  538. 

Land  Transfer  Bill.  82  Law  Times,  409,  428,  439; 
83  id.,  3,  102,  133,  265,  305,  329,  359,  355,  408,  446,  467; 
37  id.,  351,  368,  384,  754;  38  id.,  35,  550,  585;  40  id., 
124,  560;  44  id.,  251,  289,  308,  380,  344,  324,  168,  466, 
691. 

Same.  31  Sol.  Journal  &  Rep.,  359,  374,  381,  390, 
407,  424,  425,  439,  476,  490,  505,  521,  541,  545,  563,  572, 
589,  622,  673,  715,  743,  761,  771;  42  id.,  42,  61, 179,  210; 
43  id.,  750,  759,  815;  44  id.,  81,  87. 

Same.    F.  H.  Colt,  23  Law  Journal,  141. 

Same.    3  Law  Quart.  Rev.,  263. 

Same.    22  Law  Journal,  201,  210,  225,  251,  266,  299. 

Registration  of  Land  Titles  in  Prussia.  31  Sol.  Jour- 
nal &  Rep.,  606. 

Transfer  of  Land  Titles.  (Symposium.)  A.  Oren- 
dorff,  H.  Bigelow,  E.  Callahan,  H.  B.  Hurd.  Proceed- 
ings Illinois  State  Bar  Association  for  1892,  page  170, 
et  seq. 

Registration  of  Title  in  Prussia.  C.  F.  Brickdale. 
34  Law  Quart.  Rev.,  63. 

Land  Titles  in  Australia,  Edward  Atkinson.  Vol. 
21,  Century,  586. 


132  LAND    REGISTRATION    IN    ILLINOIS. 

Registration  of  Title.  Theodore  Sheldon,  Chicago, 
1883. 

The  Torrens  System.  F.  T.  Terry,  in  Report  of  Sec- 
ond Congress,  National  Real  Estate  Association,  1892. 
Page  157. 

Titles  and  Transfers.  J.  C.  Simpson,  in  Report  of 
Second  Congress,  National  Real  Estate  Association, 
1892.  Page  163. 

Transfer  of  Land  in  Australia.  G.  H.  Wallace,  U.  S. 
Consular  Reports,  Vol.  42,  p.  327. 

Land  Transfer  Reform.  Charles  F.  Libby,  28  Am. 
L.  Rev.,  96. 

Registration  of  Title  in  Germany  and  Austria-Hun- 
gary. C.  F.  Brickdale,  31  Am.  L.  Rev.,  827. 

Land  Registration,  32  Am.  L.  Rev.,  760,  930. 

Land  Title  Registration.  W.  D.  Turner,  33  Am.  L. 
Rev.,  42,  136. 

Land  Transfer.    R.  R.  Torrens,  53  Spectator,  1024. 

Reform  of  Land  Laws.    29  Nation,  270. 

Consular  Report  of  G.  W.  Griffin.  State  Depart- 
ment, Washington,  D.  C. 

Registration  of  Title.  H.  B.  Hurd,  before  Illinois 
State  Bar  Association,  Jan.  29, 1892. 

Torrens  System.  A.  M.  Pence,  Chicago  Legal  News, 
13  Jan.,  1894. 

Torrens  System.    M.  M.  Yeakle,  Chicago,  1895. 

Land  Law  Reform.  G.  A.  Morgan,  Fortnightly  Rev., 
Dec.,  1879. 

Registration  of  Title.  Proceedings  of  World's  Real 
Estate  Congress,  Chicago,  Oct.,  1893. 

PARLIAMENTARY  AND  LEGISLATIVE  REPORTS. 

Report  of  the  Real  Property  Commissioners,  '32. 
Report  of  the  Registration  and  Conveyancing  Com- 
missioners, '50. 


REGISTRATION  OF  TITLE  LITERATURE.  133 

Report  of  the  Commissioners  on  Sale  and  Transfer 
of  Land,  '57. 

Report  of  Special  Committee  on  Sand,  Tile  and 
Transfers,  '78-79. 

Supplementary  Returns  to  the  House  of  Commons, 
upon  the  System  of  Conveyancing  by  Registration  of 
Title,  in  Operation  in  South  Australia,  Queensland, 
New  South  Wales,  Victoria,  Tasmania,  Western  Aus- 
tralia, New  Zealand,  British  Columbia  and  Fiji,  '79. 

Report  of  the  Royal  Commission  of  Inquiry  into  the 
Working  of  the  Real  Property  Acts,  '61-77.  Queens- 
land, '79. 

Same,  '83. 

Handy  Book  of  the  Land  Transfer  Acts,  Containing 
Copies  of  Acts  Issued  from  the  Office  of  the  Registrar- 
General  of  Land.  Wellington,  New  Zealand,  '78. 

Registration  of  Titles  in  the  British  Colonies.  House 
of  Commons  Returns  by  Colonial  Authorities,  '81. 

The  Torrens  System  of  Conveyancing,  Report  to  the 
Legislature  of  the  Straits  Settlement.  W.  E.  Maxwell, 
Singapore,  '83. 

Report  of  Joint  Special  Committee,  Massachusetts, 
1892. 

Report  of  Land  Transfer  Commission,  Illinois,  1893. 

Report  of  Australian  Governors,  House  of  Commons 
Blue  Book,  1872. 

Report  of  Real  Property  Commission,  Adelaide,  1861. 

TREATISES. 

Registration  of  Title  to  Land.    Brickdale,  Lond.,  '86. 

Registration  of  Title  and  Transfer  of  Land.  P.  H. 
Colt,  London,  '73-85. 

Registration  of  Title.    H.  B.  Leech,  Lond.,  '91. 

Registration  of  Titles  to  Real  Estate.  L.  W.  Coutlee, 
Toronto,  '90. 


134  LAND  REGISTRATION  IN  ILLINOIS. 

The  Reform  in  the  English  Land  System.  Land 
Transfer  Reform.  J.  H.  Mason,  Toronto,  '83. 

Torrens  System  of  Land  Transfer  in  Ontario  and 
Manitoba.  H.  C.  Jones,  Toronto,  '86. 

An  Essay  on  the  Transfer  of  Land  by  Registration. 
R,  Torrens,  Lond.,  '91. 

Practice  of  the  Office  of  Titles  of  Victoria.  Sedge- 
field,  Melbourne,  '89. 

Statement  on  the  Land  Laws  by  the  Council  of  the 
Incorporated  Law  Society,  1893. 

Land  Transfer;  Report  of  Bar  Committee.    Lond.,  '86. 

Manitoba  and  Northwest  Territories.  L.  W.  Coutlee, 
Toronto,  '90. 

New  Zealand  Land  Transfer  Act,  1885,  with  amend- 
ments. Wellington,  N.  Z.,  '85-89. 

La  Propriete  Consolidee.    E.  Worms,  Paris,  '88. 

Official  Draft  of  the  Law  Relating  to  Registration  of 
Titles  for  the  German  Empire.  (Nebst  Motiven.)  Offi- 
cial edition.  (Ger.)  Berlin, '89. 

Prussian  Legislation  concerning  Registration  of 
Title.  2nd  official  edition.  (Ger.)  Dr.  Fischer.  Ber- 
lin, '92. 

System  of  Land  Tenure  in  Various  Countries.  Lon- 
don, '92. 

Registration  of  Title.    W.  B.  Dill.    London,  1893. 

Land  and  Mortgage  Registration.  H.  Morris.  Lon- 
don, 1895. 

Land  Registry.    C.  F.  Brickdale.    Lond.,  1892. 

Registration  in  Middlesex.  C.  F.  Brickdale.  Lond., 
1892. 

Notes  on  Land  Transfer.  C.  F.  Brickdale.  Lond., 
1894. 

Land  Transfer  and  Registration  of  Title  in  Ireland. 
Madden.  London,  1892. 

Les  Livres  Fonciers.  Emmanuel  Besson.  Paris, 
1892. 


REGISTRATION  OF  TITLE  LITERATURE.  135 

Registering  Title  to  Land.  Jacques  Dumas.  Cal- 
laghan  &  Co.,  Chicago,  1900. 

Land  Registration  Act  of  Mass.  C.  C.  Smith.  Bos- 
ton, 1900. 


APPENDIX. 


AMERICAN  SURETY  COMPANY  OF  NEW  YORK. 

Capital 12,500,000.00 

Assets 15,283,636.00 

Principal  Offices,  100  Broadway,  New  York. 
Chicago  Office,  704-711  Marquette  Building.     Tele- 
phone, Central  395. 


CHICAGO  LOCAL  BOARD. 

JESSE  SPALDING,  Resident  Vice-President. 
JOHN  J.  MITCHELL,  E.  S.  LACEY, 

ROBERT  T.  LINCOLN,  T.  S.  KIRKWOOD, 

JAMES  H.  ECKELS,  J.  V.  CLARKE. 

DANIEL  T.  HUNT,  Manager. 

FREDERIC  F.  NORCROSS,  Attorney  and  Resident 
Assistant  Secretary. 

The  American  Surety  Company  will  promptly  exe- 
cute bonds  guaranteeing  the  performance  of  warranties 
of  title  contained  in  instruments  of  conveyance  of  land 
upon  which  the  Registrar's  certificate  of  title  has  issued 
under  the  Torrens  Law  at  any  time  after  the  issuance 
thereof.  Such  bonds  run  for  the  minimum  period  of 
five  years,  which  is  sufficiently  long  to  cover  the  term 
during  which  the  certificate  of  title  is  not  conclusive 
evidence  of  title.  Applications  for  such  bonds  may  be 
made  at  the  Chicago  office  of  said  Company.  The  rates 
are  as  per  the  following  schedule: 

136 


APPENDIX  . 


137 


Each  addi- 

5  years 

€ 

7 

8 

9 

10 

tional 

or  less 

yrs. 

yrs. 

yrs. 

yrs. 

yrs. 

year 

$       1 

$2,000 

$10.00 

$12.00 

$14.00 

$16.00 

$18.00 

$20.00 

$2.00 

2,001 

2,500 

12.50 

15.00 

17.50 

20.00 

22.50 

25.00 

2.50 

2,501 

3,000 

15.00 

18.00 

21.00 

24.00 

27.00 

30.00 

3.00 

3,001 

3,500 

17.50 

21.00 

24.50 

28.00 

31.50 

35.00 

3.50 

3,501 

4,000 

20.00 

24.00 

28.00 

32.00 

36.00 

40.00 

4.00 

4,001 

4,500 

22.50 

27.00 

31.50 

36.00 

40.50 

44.50 

4.50 

4,501 

5,000 

25.00 

30.00 

35.00 

40.00 

45.00 

50.00 

5.00 

5,001 

5,500 

26.50 

31.50 

36.75 

42.00 

46.25 

52.50 

5.25 

5,501 

6,000 

27.50 

33.00 

38.50 

44.00 

49.50 

55.00 

5.50 

6,001 

6,500 

28.75 

34.50 

40.25 

46.00 

51.75 

57.50 

5.75 

6,501 

7,000 

30.00 

36.00 

42.00 

48.00 

54.00 

60.00 

6.00 

7,001 

7,500 

31.25 

37.50 

43.75 

50.00 

56.25 

62.50 

6.25 

7,501 

8,000 

32.50 

39.00 

45.50 

52.00 

58.50 

65.00 

6.50 

8,001 

8,500 

33.75 

40.50 

47.25 

54.00 

60.75 

67.50 

6.75 

8,501 

9,000 

35.00 

42.00 

49.00 

56.00 

63.00 

70.00 

7.00 

9,001 

9,500 

36.25 

43.50 

50.75 

58.00 

65.25 

72.50 

7.25 

9,501 

10,000 

37.50 

45.00 

52.50 

60.00 

67.50 

75.00 

7.50 

For  each  addi- 

tional  500 

1.25 

1.50 

1.75 

2.00 

2.25 

2.50 

.25 

INDEX. 


[The  page  number  is  given.] 

ACT,  when  took  effect,  18. 

ACTION,  real,  judgment  on,  how  registered,  57. 

against  assurance  fund,  62. 

who  shall  be  parties  to  such  suit,  63. 

must  be  begun  within  ten  years,  64. 

ACTION  AT  LAW,  not  to  affect  registered  land  unless  memoran- 
dum is  registered,  57. 
ADDRESS,  of  owners,  how  and  where  entered,  44. 

change  of,  to  be  endorsed,  44. 
ADMINISTRATION,  copy  of  decree  granting  letters  of,  to  be  filed, 

when,  52. 

ADMINISTRATOR,  notice  to,  before  issue  of  certificates  to  heirs  or 
devisees,  52. 

jurisdiction  of  probate  court  to  license  sale  or  mortgage  of  regis- 
tered land,  54. 
ADVERSE  CLAIMS,  how  registered,  10,  60. 

fee  for  registering,  66. 

ADVERSE  POSSESSION,  not  to  run  against  registered  land,  40. 
AFFIDAVIT,  of  adverse  claim,  60. 
AGENT,  required  for  foreign  owner,  20. 

AGREEMENT,  registration  is,  running  with  registered  land,  42. 
AMENDMENTS,  what  and  how  allowed,  25. 

terms  of  allowance,  25. 

ANSWER,  when  filed,  by  whom,  and  what  shall  contain,  30. 
APPEAL,  from  court  of  registration  to  Supreme  court,  34. 
APPLICATION  FOR  REGISTRATION,  by  whom  made,  20. 

by  corporations,  how  made,  20. 

by  married  woman,  how  made,  20. 

where  filed,  25. 

what  it  shall  contain,  21. 

form  of,  24. 

by  non-resident,  20. 

amendments  to,  25. 

how  much  land  included,  23. 

if  subject  to  a  mortgage,  20. 

139 


140  INDEX. 

APPLICATION  FOR  REGISTRATION— Concluded. 
reference  of,  to  examiner,  26. 
report  on,  by  examiner,  26. 
answer  to,  by  objectors,  27. 
order  of  court,  dismissing,  28. 
may  be  withdrawn,  28. 

ASSIGNEE  IN  INSOLVENCY,  entitled  to  certificate  of  debtor's 
land,  55. 

certificate  issued  to,  surrendered  when,  55. 

order  for  conveyance  by,  to  be  registered,  55. 
ASSIGNMENT,  of  mortgage,  how  registered,  48. 

entered  on  mortgagee's  certificate,  48. 
ASSURANCE  FUND,  how  accumulated,  62. 

action  against,  62. 

parties  to  action,  63. 

payments,  how  made  from,  63. 

income,  how  used,  62. 

damages,  recoverable,  63. 

actions  against,  to  begin  within  ten  years,  64. 
ATTACHMENT,  filed  is  notice  to  all  persons,  58. 

to  be  noted  on  entry  book,  58. 

how  made  and  registered,  58. 

to  be  noted  on  duplicate  certificate,  58. 

how  reduced,  discharged,  etc.,  59. 

certificates  of  the  action  or  proceeding  of  court  to  be  regis- 
tered, 59. 

ATTORNEY,  powers  of  to  be  acknowledged  and  registered,  49. 
BOND,  of  registrar,  18. 

of  examiner,  19. 
CANCELLATION,  of  interests  less  than  estates  in  fee  simple,  49. 

of  certificates  on  making  new,  45. 
CERTIFICATES  OF  TITLE,  registrar  may  issue,  36. 

subject  to  what  encumbrances,  20. 

original  and  subsequent,  what  are,  36. 

to  two  or  more,  as  tenants  in  common,  37. 

of  distinct  parcels  surrendered  for  one  or  all,  45. 

of  subdivisions  of  registered  land,  how  obtained,  45. 

conclusive  evidence  of  all  matters  stated,  41. 

shall  contain  what,  37. 

new  encumbrances,  how  noted,  59. 

new,  not  entered  unless  duplicate  is  presented,  47. 

new,  how  made,  47, 

when  grantor  sells  part  of  his  registered  land,  43. 

how  show  a  trust,  50. 

new,  to  assignee  in  insolvency,  80. 


INDEX.  141 

CERTIFICATES  OF  TITLE—  Concluded. 

new,  after  insolvency  closed,  80. 

new,  by  descent  or  devise,  51. 

new,  by  license  of  probate  court,  53. 

See  "Duplicate  Certificate." 
CERTIFIED  COPY,  of  mortgage,  when  registered,  48. 

of  certificate,  conclusive  evidence,  39. 
COMPULSORY  REGISTRATION,  81. 
CONDITION,  equitable,  how  registered,  50. 
CONVEYANCE,  in  fee,  how  made,  42. 

of  portion  of  registered  land,  43. 

in  mortgage,  how  made,  47. 

in  trust,  how  made,  50. 

by  descent  and  devise,  51. 

by  license  of  probate  courts,  53. 

COPIES,  of  instruments  filed  duly  certified  may  be  obtained,.  66. 
CORPORATIONS,  how  apply  for  registration,  20. 
COURT  OF  EQUITY,  decrees,  how  registered,  57. 
COURT  OF  LAND  REGISTRATION,  jurisdiction  of,  25,  32. 

always  open,  25. 

not  bound  by  report  of  examiner,  32. 

may  order  registered  owner  to  produce  his  certificate,  60. 

may  order  surrender  or  cancellation  of  certificate,  60. 
DAMAGE,  action  in  contract  for,  62. 

when  action  for,  lies  against  treasurer  of  county,  63. 
DECISIONS,  of  court,  how  appealed  from,  34. 
DECREE,  affecting  registered  land  to  be  registered,  57. 

court    of    equity    may    require    registered    owner    to    execute 

deeds,  60. 
DECREE  OF  REGISTRATION,  appeals  from,  34. 

when  entered,  32. 

dismiss,  may  be  without  prejudice,  28. 

for  registration  after  hearing,  32. 

binds  the  land  and  quiets  title,  32. 

conclusive  against  all  persons,  39. 

not  to  be  opened  by  reason  of  the  disability  of  any  person,  33. 

not  opened  after  transfer  for  value,  40,  61. 

subject  to  encumbrances  named,  32. 

is  an  agreement  that  land  shall  forever  remain  registered,  42. 
DEED,  of  registered  land,  form  and  effect  of,  44. 

registration  the  operative  act,  44. 

filed,  is  notice  to  all  persons,  43. 

what  should  contain,  44. 

how  registered,  44. 


142  INDEX. 

DEFAULT,  when  entered  and  when  concluded,  31. 
DESCENT  AND  DEVISE,  on  transfer  by,  new  certificate  to  issue,  52. 
DESCRIPTION  OF  LAND,  in  application  for  registration,  22. 
DISABILITY,  persons  under,  how  make  application,  20. 

decree  not  opened  by  reason  of,  33. 

Of  owner  to  be  stated  in  decree  of  registration,  37. 
DISCHARGE,  of  mortgage,  how  effected,  49. 

of  liens  and  attachments,  how  effected,  59. 
DOCUMENTS,  registrar  has  custody,  and  where  kept,  44. 

open  to  public  inspection,  18. 
DOCKET,  of  court,  by  whom  kept,  25. 
DOWER,  a  legal  incident  of  registered  lands,  45. 
DUPLICATE  CERTIFICATE,  issued  to  owner,  38. 

one  to  each  if  several  owners,  37. 

must  be  presented  with  all  instruments  for  registration,  42. 

surrendered  and  cancelled  on  entry  of  new  certificate,  42. 

lost,  how  replaced,  46. 

surrender,  how  enforced,  60. 

DUPLICATE,  of  instruments  may  be  registered  with  originals,  47. 
EASEMENTS,  appurtenant  to  registered  land,  40. 
ENCUMBRANCES,  every  certificate  subject  to  what,  39. 

how  entered  on  certificate,  47. 

how  carried  to  new  certificate,  47. 

how  discharged,  49. 

memorandum  to  be  entered  on  certificate,  47. 

enforcement  of,  49. 

ENTRY  BOOK  to  be  kept,  and  contents,  44. 
EQUITY,  bill  in,  how  to  affect  registered  land,  57. 

decree,  how  to  affect  registered  land,  57. 

less  than  fee  simple,  registered  by  memorandum,  37. 
EVIDENCE,  conclusive,  as  to  all  matters  stated  in  certificate,  41. 
EXAMINERS  OF  TITLE,  how  appointed  and  removed,  19. 

reference  of  application  to  immediately,  26. 

court  not  bound  by  report  of,  32. 

may  act  as  master,  27. 
EXECUTION,  to  be  filed  and  registered,  58. 

lien-holder  obtaining,  may  petition  court  for  new  certificate,  58. 

against  co-defendants  only  with  treasurer  of  county,  63. 
EXECUTOR,  notice  to,  before  issuing  new  certificate  to  devisee,  53. 

may  have  license  to  sell  or  mortgage  registered  land,  53. 
FEES,  of  registrar,  payable  to  whom,  66. 

for  assurance  fund,  62. 

under  act,  general  provisions,  66. 


INDEX.  143 

FEE  SIMPLE,  owners  of  estates  in,  may  apply  for  registration,  20. 
FORECLOSURE  OF  MORTGAGE,  same  methods  of  as  of  unregis- 
tered land,  49. 

FORGERY,  penalties  for,  64. 
FORMS,  of  application,  4. 

certificate  of  title,  36. 
FRAUD,  effect  of  upon  decree,  39. 

certificate  obtained  by,  39. 

remedies  against  parties  to,  60. 

remedies  after  original  registration,  60. 

registration  omcials  and  others,  60. 
GUARDIAN,  application  by,  20. 
HEIR,  may  have  new  certificate  of  registered  land,  55. 

decree  subject  to,  if  certificate  does  not  determine  boundary 

of,  40. 

INDEX,  tract  and  alphabetical  to  be  kept,  61. 
INFANTS,  application  for  registration  by,  20. 
INFANCY,  decree  not  opened  by  reason  of,  33. 

INNOCENT  PURCHASER,  no  right  of  review  against,  40,  41,  61. 
his  certificate  subject  only  to  encumbrances  written  thereon,  40. 
vendor's  fraud  not  to  affect,  40. 

INSOLVENCY,  assignee  in,  may  recover  registered  land,  55. 
of  owner  of  registered  land,  55. 
after  discharge,  new  certificate,  55. 

INSTRUMENT,  voluntary,  how  take  effect,  44. 

time  of  reception  to  be  noted,  44. 

registration  is  from  time  noted,  44. 

to  be  numbered,  indexed  and  endorsed,  44. 

voluntary,  how  registered,  44. 

INTERESTS  IN  REGISTERED  LAND,  less  than  fee,  how  regis- 
tered, 39. 

JUDGMENT,  notice  of,  to  affect  registered  land,  57. 

nal,  notice  to  be  registered,  57. 
In  real  action  to  be  registered,  57. 
against  treasurer  of  county  alone,  when,  63. 

JURISDICTION,  of  court  of  registration,  25,  32. 

of  probate  courts  not  impaired,  54,  55. 
LAND,  when  becomes  registered  land,  39. 
LEASE,  certificates  subject  to,  for  less  than  five  years,  39. 

for  more  than  five  years  to  be  registered,  39. 
LIEN,  filed  is  notice  to  all  persons,  59. 

how  filed  and  to  contain  what,  59. 


144  INDEX. 

LIEN — Concluded. 

how  noted  on  owner's  duplicate  certificate,  59. 
how  discharged,  59. 

LIMITATION  OF  ACTION,  for  filing  writ  of  error,  34. 

for  compensation  under  act,  64. 
LOSS  OF  DUPLICATE  CERTIFICATE,  notice  to  be  given,  46. 

procedure  to  obtain  new,  46. 

MARRIED  WOMAN,  application  for  registration  must  have  consent 

of  husband,  22. 

MASTER,  examiner  may  act  as,  with  same  authority,  27. 
MECHANIC'S  LIEN.    See  "Lien." 

MEMORANDUM,  of  instrument  creating  interest  less  than  a  fee 
simple,  39. 

authority  for  making,  60. 

of  issue  of  mortgagee's  duplicate  certificate,  48. 
MINOR,  application  by,  how  made,  20. 
MORTGAGE,  to  which  application  or  decree  is  subject,  20. 

to  be  presented  for  registration,  47. 

registration  the  operative  act,  47,  43. 

filed  is  notice  to  all  persons,  47. 

should  contain  what,  47. 

may  be  registered  in  duplicate  and  one  taken  away,  47. 

how  dealt  with,  48. 

takes  effect  from  time  of  registration,  47,  43. 

how  registered,  47. 

mortgagee's  duplicate  certificate,  48. 

how  assigned  and  discharged,  48. 

how  foreclosed,  49. 
MUNIMENTS  OF  TITLE,  to  accompany  application,  27. 

when  may  be  withdrawn,  28. 

NEGLIGENCE,  of  registration  officials,  remedy  for,  62. 
NOTICE,  of  court,  returnable  as  court  may  direct,  28. 

of  application,  to  whom  addressed,  29. 

of  application,  how  and  when  published,  29. 

form  of,  29. 

of  application,  on  whom  and  when  served,  28. 

of  application,  court  may  order  additional,  30. 

to  all  persons,  every  filed  instrument  to  be,  43. 

of  pending  suit,  etc.,  57. 
OATH,  examiner  may  administer,  26. 

by  applicants  for  registration,  21. 

to  amendments  of  application,  25. 
OCCUPANTS,  of  land,  to  be  named  in  application,  22. 

of  adjoining  land,  to  be  named  when  boundary  in  dispute,  22. 


INDEX.  145 

OPERATIVE  ACT,  what  is,  to  convey  registered  land,  43. 
OWNERS,  of  adjoining  land  to  be  named  in  citation,  if  boundary 
in  dispute,  22. 

of  registered  land  may  convey,  mortgage,  lease,  etc.,  42,  47. 
OWNER'S  DUPLICATE  CERTIFICATE,  what  is  and  who  entitled 
to,  38. 

to  have  memorandum  of  what,  38. 

noted  with  all  interests  less  than  fee,  38. 

to  be  presented,  when,  42,  47. 

to  be  produced  by  order  of  court,  60. 

if  lost,  remedy,  46. 

surrender  of,  how  enforced,  60. 
PARTITION,  final  judgment,  how  registered,  57. 
PENALTY,  for  taking  certificate  wrongfully,  64. 

for  false  oath,  64. 

for  mutilating  records,  64. 

for  forgery,  65. 

PETITION.    See  "Application." 
POST-OFFICE  ADDRESS,  of  grantee  to  be  endorsed  on  deed,  44. 

any  change  of,  to  be  endorsed,  44. 
POSSESSION,    ADVERSE,    no    title    by,    acquired    in    registered 

land,  40. 

PRESCRIPTION,  no  rights  by,  as  against  registered  land,  40. 
PROCESSES  OF  COURT,  where  returnable,  28. 
REGISTRAR,  who,  and  duties,  18. 

may  employ  deputies,  18. 

pays  over  assurance  fund  to  state  treasurer,  62. 

when  liable  personally,  19. 
RECORDS,  open  to  public  inspection,  18. 
REGISTRATION,  who  may  apply  for,  20. 

decree  for,  when  entered,  32. 

decree  for,  conclusive  against  all  persons,  41. 

every  decree  subject  to  what,  39. 

the  operative  act  to  convey  the  land,  43. 

dates  from  date  of  reception  of  instrument,  43. 

of  voluntary  instruments,  how  made,  42,  47. 

of  involuntary  encumbrances,  how  made,  57,  58,  59,  60. 
REGISTER  OF  TITLES  BOOK,  what  it  is,  and  how  kept,  37. 
RETURN  DAY  OF  SUMMONS,  not  less  than  ten  days  from  issue,  28. 
SALARIES,  of  officials,  how  fixed  and  paid,  18. 
SALE,  of  land,  after  decree  of  registration,  42. 

of  registered  land  by  license  of  probate  court,  55. 
SEAL,  to  be  on  certificates,  37. 


146  INDEX. 

SUBSEQUENT  CERTIFICATES,  form  of,  36. 

SUITS,  pending,  notice  of,  to  be  filed  and  registered,  57. 

SURRENDER,  of  owner's  duplicate,  when  conveyance  in  fee,  42. 

of  mortgagee's  duplicate,  when  mortgage  is  discharged,  49. 

of  duplicate  certificates,  how  enforced  by  court,  60. 
SURVIVAL,  of  action  against  assurance  fund,  64. 
SUPREME  COURT  DECISIONS— 

Illinois,  84. 

Massachusetts,  99. 
TAXES,  certificate  of  title  subject  to  what,  40. 

memorandum  of  sale  for,  to  be  registered,  56. 

deed  for,  how  registered,  56. 
TENANTS,  of  undivided  shares,  not  to  apply  separately,  20. 

in  common,  each  may  have  certificate,  37. 
TIME,  of  reception  of  instruments  to  be  noted,  44. 
TRUST,  how  registered,  50. 

transfers  under,  50. 

implied  or  constructive,  how  noted,  50. 
WAYS,  certificate  subject  to  what,  40. 
WILL,  memorandum  as  to  probate  of,  52. 

certified  copy  to  be  filed,  when,  52. 
WRIT,  of  error,  when  allowed,  34. 

of  execution,  sale  under,  how  registered,  58. 

memorandum  of,  to  be  registered,  58. 


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